On May 6, 2003, Richard Marceau introduced a Private Members’
Business motion to authorize the Standing Committee on Justice and Human Rights
to study the process by which judges are appointed to Courts of Appeal and to
the Supreme Court of Canada. The following extracts are taken from debate on
Richard Marceau (Bloc Québécois): There is an old principle in English common
law, that justice must not only be done, it must be seen to be done. The
purpose of this principle, the very foundation of our justice system, is to
maintain the highest possible level of public confidence in the judiciary. The
current process of appointing judges, however, is in direct conflict with this
principle, and clouds the image of justice.
There are many examples to support this statement. Last summer,
the Prime Minister appointed Justice Michel Robert, who had served on the
Quebec Court of Appeal since 1995, to the position of Chief Justice for Quebec.
This is a very important position, in Quebec’s judicial system.
The Minister of Justice and Attorney General announced, on
August 8, the appointment of the Marie Deschamps, a judge of the Quebec
Court of Appeal, to the Supreme Court of Canada.
These two individuals no doubt, enjoy an enviable legal
reputation, which therefore surely justifies their appointment to such
important positions. However—since justice must be seen to be done —it is
reasonable to wonder, as members—and the general public will not hesitate to
make its views known—whether their appointment has anything to do with their
commitment to the Liberal Party of Canada or their connections to the latter.
These two examples seem to show or at least clearly suggest
politicization of the courts. In today’s society, this politicization or this
appearance of politicization, even a hint of it, can seriously jeopardize the
public’s respect for the courts and the judiciary.
If we consider the important role of the courts today,
particularly given their greater duties, if only due to appeals related to the Canadian
Charter of Rights and Freedoms, or their involvement in the evolution of
various social debates such as same-sex marriage, aboriginal claims and the
decriminalization of marijuana, we must avoid at all costs any association
between the judiciary and the political arm.
These judges, who are not elected, make decisions which have an
increasing impact on the creation of public policy in Canada and sometimes go
beyond what Parliament might have wished.
This is an argument of some weight in favour of a review and
democratization of the process of appointing judges, which unfortunately some
will surely criticize. But we must resist and we must hold this debate. It is
very likely that the public will agree that the entire matter needs to be
I am making a solemn appeal to my colleagues across the way. Let
them keep their eyes and ears open and especially let them not jump to a
conclusion too hastily. I hope that the Parliamentary Secretary to the Minister
of Justice with whom I had the opportunity to work on the Standing Committee on
Justice and Human Rights, will not take a dogmatic stand and will instead agree
to a serious study, as we had in connection with same-sex partners, an issue of
equal importance for Canada.
I would like to remind him, and all members of the Liberal Party
that Mr. Martin, said the following in his speech to the students of the
University of Toronto’s prestigious Osgoode Hall:
We should reform the process surrounding government
appointments.The unfettered powers of appointment enjoyed by a prime minister
are too great... Such authority must be checked by reasonable scrutiny
conducted by Parliament in a transparent fashion...To avoid paralysis, the
ultimate decision over appointments should remain with the government. But a
healthy opportunity should be afforded for the qualifications of candidates to
be reviewed, by the appropriate standing committee, before final confirmation.
At the time he was referring to senior public servants and to
ambassadors. None of these senior positions that he would like to subject to
parliamentary review, none of these ambassadors or senior officials, will have
as much impact on public policy as appeal court judges or judges of the Supreme
Court of Canada.
We could go on at great length about the current appointment
processes for provincial and territorial superior court judges, for Federal
Court judges, or for judges at the Tax Court of Canada, because there are
specific criteria that must be filled for these appointments.
When it comes to appointments to appeal courts and to the
Supreme Court, subjectivity reigns. There is no clear and precise process in
place for the appointment of these judges.(Richard Marceau)
The entire process is left to the discretion of the Prime
Minister, with input from the Minister of Justice. It is strange that
appointments to lower judicial appointments are more structured than
appointments to these higher courts, such as the appeal courts and the Supreme
This is a substantive issue that is critical for the old common
law principle that I mentioned in my introduction, regarding justice and the
appearance of justice. It is up to us as parliamentarians to promote public
confidence in our institutions and this mission must include our legal system.
We could quote a number of articles published in newspapers,
which clearly show what the public thinks of the current process. In La
Presse of June 28, 2002, Yves Boisvert commented on the appointment of
Michel Robert in an article entitled “Patronage Appointment”.
On June 29, 2002, The Gazette published an editorial
under the headline “Who’s to Judge”. I encourage my hon. colleagues to read
these articles. There is also an article published in the National Post
on July 2, 2002, admonishing, “Don’t politicize courts”. Then there was the London
Free Press, asking parliamentarians to “Review the Appointments”.
We can see from these various editorial policies that the public
is worried, that it would like a process that is more transparent, which would
assure the people of Quebec and Canada that the nominees to positions as appeal
or supreme court judges are not appointed because of their connections to the
ruling political party.
I urge all the members of this House, and those from the
government party in particular, to allow parliamentarians to examine this
question. Give us this opportunity to review the process to ensure that judges
are not treated as politicians and that there is an opportunity to consider the
Paul Macklin (Liberal): The importance of a strong judiciary to
Canadian society cannot be overemphasized. There is a growing recognition that
stability, human security and the rule of law are necessary for a society which
is economically viable and which protects human rights. As the guardians of the
rule of law, judges form an important part and a pillar of our social order.
The need for further study of the appointment process for federally
appointed judges has not been demonstrated. This process is well known and has
served the Canadian public very well. I would like to take this opportunity to
examine how the appointments process for federally appointed judges contributes
to the maintenance of a strong judiciary by securing judges of the highest
The federal judicial appointments process has been in place
since 1988 and is administered by the Commissioner for Federal Judicial
Affairs. The process applies to those interested in submitting their
candidacies for appointment to the superior courts, including appointment to
the provincial and federal courts of appeal.
The statutory qualifications for appointment are ten years at
the bar of a province or a combination of ten years at the bar of a province
and service in a judicial office. Under the federal judicial appointments
process, qualified lawyers and those holding office as provincial and
territorial court judges may apply to the commissioner for appointment to a
superior court. Additionally, candidates may also be nominated by members of
the legal community or by other interested persons or organizations. In these
cases the commissioner will contact each nominee to confirm his or her interest
in being considered for judicial appointment.
This process is the very means by which qualified
candidates from historically under-represented communities are identified for
possible appointment to superior court. All candidates complete an extensive
personal history form that canvasses matters such as the name of the bench they
want to join and why, and an assessment of their strengths and weaknesses for
Because the government is fully committed to ensuring that the
full diversity of all communities is well represented on the superior court
bench, candidates, at their option, may also self-identify if they belong to an
ethnic, minority, aboriginal or disabled group. The completed forms are
forwarded by the commissioner to the appropriate provincial or territorial advisory
committee. The applications for judicial appointment are assessed by these
independent advisory committees.
Advisory committees are a key element of the federal
appointments process and are comprised of seven individuals drawn from the
bench, the bar and the general public on the following basis: a nominee of the
provincial or territorial law society; a nominee of the provincial or
territorial branch of the Canadian Bar Association; a judge nominated by the
chief justice of the province or territory; a nominee of the provincial
attorney general or territorial minister of justice; and three nominees of the
federal Minister of Justice.
The federal nominees are selected for their ability to represent
the public interest and at least two of them may not be practising lawyers. The
provincial attorneys general and territorial ministers of justice are
encouraged to choose their nominees on a similar basis. Each member is
appointed by the Minister of Justice to serve an unpaid term of two years.
There is a possibility of a single renewal. Lawyer members of the committees
cannot themselves be candidates for judicial appointment for one year following
their term of office. Regionally based committees have been established in
Ontario and Quebec because of the large populations in these provinces.
Advisory committees confirm the candidate’s credentials with
legal and other sources. They assess the candidates’ professional competence
and experience, personal characteristics, social awareness, including
sensitivity to gender and racial equality, and any potential impediments to
that appointment. The assessment is a rigorous one, designed to identify
persons suited both by temperament and ability to preside over the superior and
appellate courts of this country.
The committee makes an assessment of each candidate and will
make one of the following determinations: that the candidate is recommended, or
highly recommended, or that the committee cannot recommend the candidate for
federal judicial appointment. Of course unsuitable candidates would fall in
this last category. When a candidate is deemed recommended or highly
recommended, that person will be included in a bank of approved candidates from
which the Minister of Justice may make a recommendation to cabinet for appointment.
The appointments process has been highly successful in producing
judges of the greatest quality and distinction. Indeed, Canadians are envied
around the world for the quality, commitment and independence of their
judiciary. For many people in other parts of the world, our Canadian
courtrooms, presided over by judges who are efficient, impartial and free from
government or any other interference, represent a shining ideal that is hoped
for but not yet realized.
Canada’s experience and expertise has been sought in the
development of judicial and court systems in such diverse countries and regions
as the former Soviet Union and the eastern bloc countries, including the
Ukraine and Kosovo, as well as South Africa and China.
There is ample evidence that the federal judicial appointments
process is working very well in fostering a judiciary of exceptional
distinction. The process does not need further study. In fact, it is my
position that the expertise and time of the Standing Committee on Justice and Human
Rights would be better directed to other issues of a more pressing nature.
For all of these reasons, I do not support the motion.
Vic Toews (Canadian
Alliance): The parliamentary secretary outlined the process. As impressive as
it sounds, it is remarkable that in the vast majority of cases the decisive
criteria is the fact that the candidate has very close connections to the
governing party. It has been the Liberal Party for some time. I dare say if we
took a list of all the candidates who have been appointed, those Liberal
connections would come very clearly.
I do not know whether that is simply coincidence but it reminds
me a lot of the story about the emperor not having any clothes. We have gone through
this charade of saying that this is the careful process we follow in selecting
our nominees. We get all these nominees together in one big pile and then out
of that pile, we magically pick the ones with the Liberal connections. We all
know they are all well qualified but the overriding qualification is either the
Liberal membership or the connection with the Liberal Party. I would challenge
members opposite to take a look at these credentials. That is the truth of the
matter. Let us not pretend that the emperor has clothes when he has no clothes.
I am pleased to support this motion. The Canadian Alliance has
long held that since non-elected judges exercise so much influence on the laws
passed by elected officials, the process of appointing them requires more
Indeed in the past 20 years since the advent of the charter, the
responsibility for making moral, cultural and indeed political decisions has
fallen out of the hands of Parliament and into the hands of the non-elected
judiciary. As a result, the judiciary currently exercises substantial political
power. At the same time, politicians have become increasingly more reluctant to
advance legitimate political initiatives, putting increasingly more power into
the hands of a selected few.
I would invite my colleagues to read the May 6, 2003 editorial
today in the Ottawa Citizen dealing with the entire issue of marriage.
The Ottawa editorial has come out very clearly in saying that this is not an
issue for judges to determine. This is a matter, a social policy issue for
Parliament to determine, yet we see courts unilaterally usurping the power of
Once empowered, judges are virtually unaccountable in our
democratic system. We need to ensure that those who are appointed are people
who reflect the values and the cultures of all Canadians.
We see often the defenders of the judiciary say that they are
only exercising the power we have given them. That is nonsense. It is like
hiring a contractor to build a two or three bedroom bungalow, then coming back
and finding a house that does not meet the standards or is completely
different. Yet the contractor says that he has been hired to do this and that
it is time to pay, with no one else to correct the mistake that has been made.
Look at the Charter of Rights. When the charter first
came in, we heard the courts say that the powers and freedoms in the Charter
of Rights could not be examined in a vacuum. We had to look at the cultural
background and the historical political context. Yet we see the courts drifting
away from that context.
Judges in Canada have taken on a greater role in shaping
government policy, an area, that had been reserved for elected officials.
In some cases this role has had a positive effect, such as the
protection of minority and equality rights. In other cases, such as the Sharpe
decision, the child pornography case, the effect has had detrimental effects on
our society and our ability to protect the most vulnerable in our society, our
One case that has resulted in numerous problems in our
immigration system is the 1985 court decision called Singh. In this case the
Supreme Court of Canada extended the Charter of Rights and Freedoms to
anyone setting foot on Canadian soil.
While most Canadians would agree that non-citizens and refugees
must be entitled to certain legal rights, such as the right to a fair trial, I
would say the indisputable right to enter into and remain in Canada should be
reserved for citizens and landed immigrants. This is certainly the approach
that has been adopted by western civilized democracy. Extending that right to
everyone has opened the door to abuse, to dangerous terrorists and other
violent criminals looking to find a safe haven in Canada. Unfortunately, this
kind of unilateral approach by the courts jeopardizes the safety and security
of all law-abiding Canadians, be they citizens, landed immigrants or potential
Other examples include the recent decision of the Supreme Court
of Canada giving the right to prisoners to vote. Convicted murderers now enjoy
the same rights that veterans who fought for this country enjoy in terms of the
right to vote.
By the court substituting its own political opinion for that of
elected parliamentarians, Canadians will lose faith in the democratic process,
in the legitimacy of democratic government and the rule of law.
All these examples illustrate that because of the important
decisions our judges are called upon to make many people in Canada believe that
the closed door process, the real process for choosing judges, controlled by
the Prime Minister, should be changed. In fact Canadian Alliance policy
specifically calls for Supreme Court of Canada judges being chosen by a
multi-party committee of the House of Commons after open hearings.
Others would like to go further. In fact recent surveys by
Environics indicate that two-thirds of Canadians believe that Supreme Court of
Canada judges should be elected.
Regardless, I strongly believe that the closed door process for choosing
Supreme Court of Canada judges and appeal court judges is in need of review.
Although the Prime Minister does consult with interest groups such as law
societies, bar associations and individual members of the legal community, as
well as other judges, when it comes to making these appointments, given the
significance of court decisions since the advent of the charter, it is
increasingly necessary for those appointments to come before Parliament in some
fashion so that a broader spectrum of Canadians is involved in that decision by
reference to parliamentarians’ input.
I am not fixed on any particular way but this is a wonderful
opportunity for the justice committee to examine the process. I see no problem
in supporting this very thoughtful and well written motion.
Lorne Nystrom (New Democratic Party): The process today in general is
non-political. It is a process that has given us pretty good courts and judges.
However I find it wanting in making it more accountable and more openly
democratic in the process.
Some members of the House might not be aware but I spent a lot
of years as a member of Parliament on the various constitution committees I was
also very much of a partisan supporter of the Meech Lake accord. One part of
that accord dealt with the selection of Supreme Court justices and it tried to
make them better reflect our federation.
This is one problem we have today. The Supreme Court judges are
appointed by the Prime Minister and the federal government. When it comes to
adjudicating a dispute between a province and the federal government, there is
a feeling in many provinces that this may not be a fair way of doing it in
terms of the referee, because they are adjudicating between a federal and
Under Meech Lake there was a mechanism where, if I recall
correctly, the provinces would select a number of people to recommend to the
minister of justice. The Minister of Justice would choose judges from the group
selected by the provinces. In the province of Quebec, for example, the
Government of Quebec would suggest a short list of names and the federal
government would choose someone from that short list.
In the rest of the country under the common law, because Quebec
judges are under civil law, we had the same thing happen for the Ontario,
western and Atlantic judges. The provinces would suggest a list to the federal
government and it would select from that list. I supported that at the time
along with a lot of other people in the House from all political parties.
That is one way of doing it and I would certainly be open to
looking at it. However the motion does not talk about a specific way of
selecting our judges. It just says that we would have a process where the
Standing Committee on Justice and Human Rights would study the process by which
judges were appointed. That is a very commendable thing to do.
I would be opposed to the election of judges, as is the
case in some jurisdictions like the United States. I would not want to see the
politicization of the process where judges run for office. (Lorne Nystrom)
Another way of doing it is to have the federal government choose
from a short list that it is provided by a non-partisan body, which we have in
some courts today. Instead of making the appointment, the federal government
would make the nomination. That nomination would then go to the Justice
Committee for ratification or rejection. That might be something we should look
at very seriously as well. It would force the federal government to be more
careful about who it would nominate because the nominee would have to go
through a ratification process at the Justice Committee. That is one way of
perhaps democratizing the process. The other way is what we did in Meech Lake
and we could look at that as well. Another way is by having advisory committees
which now basically select judges for some of the lower courts. We could apply
that to the Supreme Court as well. That is also another way of doing it.
The main thing here is that it is important that we have a
judiciary system in Canada that is divorced from politics, that is fair, that
is just and where we get the best possible judges in this country. When we
select judges, we have to ensure that we respect the privacy of the candidates,
that we maintain the separation of politics from the judiciary and that we take
the selection process from behind closed doors into a more open system of clear
standards and boundaries, thus maintaining the integrity of the judicial system
at the very highest levels. These are some of the things we could consider. The
main thing is to get this before a committee.
As a matter of fact, I think one of the roles of Parliament is
not being fulfilled as well as it should be. Committees are not being used to
the fullest in terms of doing independent studies, making recommendations on
how the government of the country should work, making recommendations on how
certain people should be appointed.
I have believed for a long time that we need a greater
democratization of our country’s political system. There is probably no
parliamentary system in the world where the prime minister’s office or indeed a
premier’s office, and this is not being partisan as our party has two premiers,
have so much power in their own hands to make appointments to important boards
In the federal government for example, the prime minister
appoints all the senators, Supreme Court justices, the head of the military,
the head of the RCMP, the head of the CBC, the head of every important agency and
board of the Government of Canada. He appoints all the cabinet ministers and
appoints all the parliamentary secretaries. In the case of the government from
time to time it even appoints candidates over the heads of local riding
We have gotten away from a more democratic system. We should
look at the democratic deficit in Canada. Part of that is how we appoint
justices to our courts. Part of it is how we organize this place and make this
place more relevant and meaningful.
I have found after my many years in Parliament that the most
frustrated parliamentarians are government backbenchers. They are very
frustrated with the process. At least in the opposition we can get up very
freely and liberally and express our point of view, ask questions in the House,
make statements that are critical of the government if we feel it is going the
wrong way. However a government backbencher becomes in effect a political
eunuch in terms of being silenced by our system.
I have seen this in Saskatchewan with the backbench NDP MLAs
where our party has been in government for most of the time since 1944. It does
not matter what the party is, we have a political system that I believe is not
as democratic as it should be.
Why for example, should we not have a system where committees
could set their own timetables? Why should we not have a system where
committees could introduce legislation? Why do we have to have so many
confidence votes? Almost everything that we vote on is a confidence vote. We
should have very few confidence votes except for the basic budgetary program
and plan of the Government of Canada.
I remember very well when Margaret Thatcher was at the height of
her popularity in Britain. There were many times when Margaret Thatcher had a
bill defeated in the House of Commons because the backbenchers in her own party
would be in opposition to the government bill.
I remember Tony Blair in the last Parliament when he was
extremely popular before his massive re-election lost many votes in the British
House of Commons. That did not bring down the government. It provided a
healthier debate for the British people.
Why could we not do that in this country? There is case after
case after case where government members of Parliament, be they Liberal or
Conservative, over the years were in opposition to a certain piece of
legislation that the government brought in. However they were not going to
bring down the government over a certain piece of legislation and cause an
election. It is the system we have.
I have seen it in all parties, at all levels, in every
provincial government over the years. It really shortchanges what the Canadian
people deserve, which is a free flowing and uninhibited debate of ideas, a
clash of ideas, representing one’s own constituents and representing them well.
The Supreme Court is a little different. The Supreme Court, as I
said before, adjudicates federal-provincial disputes. It interprets legislation
not only at the federal level but at the provincial level. Somewhere in the
process there should be input for the provinces.
It is not just in the province of Quebec. The province of Quebec
is different, unique, a province that is not in the least like the others, in
part because of its civil law, among other things. The other provinces, however,
must also be involved in selecting judges, and this is very important.
Over the past 20 years, there have been several disputes between
the Province of Saskatchewan and the federal government. In my opinion, that is
a reason to have provincial input into the selection of judges.
I hope the House will support the motion and the Justice
Committee can do a study as to how we can improve the selection of judges in
John Herron (Progressive Conservative): This is a very measured and very considered
motion that affords the opportunity for parliamentarians to discuss this
particular issue. The Progressive Conservative Party is in favour of the motion
In recent years Canadians have become concerned about the appearance
that courts have encroached upon the supremacy of the Canadian Parliament by
reading into our laws interpretations that appear to be inconsistent with or
outside the intent of the laws when passed by Parliament. More often than not,
we find that is the fault of the legislators and not a misinterpretation by the
court itself. It is our duty to ensure the laws are strong and clear.
This has led to a renewed interest in how those who comprise the
bench at the appellate level and at the Supreme Court level receive their
In the last year we have witnessed a number of cases at the
Supreme Court level which have in effect seemed to take away from the supremacy
of Parliament and seem to contradict the societal values that we hold dear. The
most provocative of these is the John Robin Sharpe case. There is also the most
recent decision allowing convicted felons the right to vote. The decisions of
the court in those two examples stand outside, I would suggest, the interests
of Canadians in terms of their societal values and outside the parameters of
what the intent of Parliament was in the first place.
Canadians do not understand how the court could allow the
potential endangerment of children by allowing the artistic merit defence. That
the courts could allow such a travesty goes beyond the rational thought process
Scrutiny by members of Parliament of appointees to the
highest court could go a long way in determining the suitability of those
wishing to serve and could possibly allow for a greater recognition or
reflection of present day values. (John Herron)
To many it seems that this reading into the intent of laws by
the courts seems to be a violation of the basic constitutional principle that
Parliament makes the laws, the executive implements them and the courts
The root of this perception of what some individuals deem as
judicial activism is the 1982 Constitution Act. It included for the
first time in Canada a constitutional entrenchment that guaranteed civil rights
through the Charter of Rights and Freedoms, requiring courts to
determine the constitutionality of our laws in light of the Charter.
Although I categorically support the charter, we all know that
there are issues that have become problematic from time to time where the
intent of Parliament has had to withstand that particular litmus test. Some
have argued that this has allowed an erosion of parliamentary supremacy in
which democratic accountability has been replaced by the supremacy of the Constitution
as interpreted by the courts.
Should this motion lead to a change in the appointment process,
it would ultimately allow for greater public scrutiny and therefore reinforce,
I believe, public confidence in the process without jeopardizing judicial independence.
In our democratic reform package we have made a number of
suggestions, including the recommendation that the name and qualifications of
any person proposed for appointment by the prime minister to the Supreme Court
of Canada should be presented to Parliament, which shall, after debate, make a
recommendation on the suitability of the nominee’s candidacy. This type of
directive could also be applied to the appointment of those at the appellate
level. A vote in the House of Commons should be conducted and the outcome
communicated to the governor in council prior to such appointments being made.
In the past there has been the suggestion that a special
committee be struck to examine those recommended for appointment. There is a
need for parliamentary scrutiny and in fact, appearances before a specialized
committee, provided the parameters of questions are clearly laid out
beforehand. In my opinion this would be appropriate.
This does not mean the committee would have the right to examine
the financial records of an appointee or for that matter the financial records
of a spouse or a partner. I do not believe this type of information can be seen
as having any relevance in terms of the appointee’s ability to interpret the
This motion is aimed at ensuring the proper representation of
Canadian views and values through those members democratically elected to
represent Canadians and could provide a unique balance and perspective in the
process of judicial appointments.
I see the committee process as an opportunity to allow members
of Parliament acting on behalf of their constituents a chance to delve into
some of the beliefs of the appointees through previous decisions rendered.
No one wants to see the American style confirmation hearings,
strictly political partisan affairs, which we have seen as in the example of
Justice Thomas. I would not be an advocate on a personal basis of having the
individuals who ascend to the bench itself be elected. That would clearly
politicize the process in a very extraordinary way. However, there are some
things we could do from a parliamentary perspective. Anything we do that
mitigates the perception that the individuals on our benches have a political
element would be a helpful service.
Both the Liberal Party of Canada and the Progressive
Conservative Party of Canada have appointed Supreme Court judges in the past.
If there is one element where we have actually made sure that we have done it
right each and every time, it is at the Supreme Court level. No prime minister,
regardless of party stripe, has in my view politicized our most sacred court in
I spoke very briefly about a document that our membership voted
on at our national convention in Edmonton in August. At that convention we reviewed
a myriad of issues in terms of renewing the country’s democratic institutions,
issues pertaining to free votes, the roles of Commons committees, codes of
ethics for Parliament and a discipline for parliamentarians, the problems with
legislative federalism, ensuring that we have the power of the purse so that
Parliament actually votes on the estimates as opposed to doing it in one single
vote. It is a travesty that we approve the estimates, about $180 billion, with
one vote with no scrutiny to speak of on a committee of the whole basis.
There are opportunities for us to review issues such as Senate
reform and correct the wrong that we have in the west. It is clear that western
Canada is not represented in the capacity it should be in terms of the respect
of its population and the influence that they have in this country.
We have to move to an elected Senate as well and give senators
the moral right to make interventions to the degree that they want to, the
legislative authority to do so by being elected, democratically selected
We talked about issues such as citizen initiatives and
referenda, rights for citizens to petition.
These were all issues that we spoke to. However the debate that
we have before is the relationship between Parliament and the courts. I would
like to make three points which I think would be valuable proposals for
Parliament to consider.
First, we propose that Parliament undertake to ensure the
maintenance of a proper balance between itself and the courts. We should have a
pre-legislation review to ensure that Parliament clearly specifies within each
statute the intent of the statute and obtains independent legal advice and
charter compatibility of bills before they leave Parliament in the first place.
Second, we propose to establish a judicial review committee of
Parliament to prepare an appropriate response to those court decisions which
Parliament believes should be addressed through legislation.
Third, we believe that the name and qualifications of any person
proposed for appointment by the prime minister to the Supreme Court of Canada
should be presented to Parliament which shall after debate make a
recommendation on the suitability of that person’s nomination.
We do not want to co-opt an American system. When it comes to
the Supreme Court perspective, we have it right for the most part.
Editor’s Note: On September
26, 2003, several other members spoke in support of this motion and on October
1, 2003, it was adopted and referred to the Standing Committee on Justice and
Human Rights. The first meeting to consider this matter was held on November 6,