Mr. Vic Toews (Provencher, Canadian Alliance) moved:
That this House call upon the government to bring in measures to protect and reassert the will of Parliament against certain court decisions that: (a) threaten the traditional definition of marriage as decided by the House as, “the union of one man and one woman to the exclusion of all others”; (b) grant house arrest to child sexual predators and make it easier for child sexual predators to produce and possess child pornography; and (c) grant prisoners the right to vote.
The Canadian Alliance is concerned and Canadians across the country are concerned that recent court decisions do not represent the view of Parliament nor the values of Canadian society as a whole.
The three issues outlined in the motion are of particular importance to the constituents in the riding of Provencher and indeed to ordinary citizens across the country, citizens whom I speak to and whom I receive letters from on a daily basis.
Under the assumed authority of the Canadian Charter of Rights and Freedoms the courts have moved beyond their traditional role as arbiters of legal disputes and into the realm of policy making. Indeed, they have become politicians.
While it was anticipated that the charter would grant the courts new powers to review the constitutionality of Parliament's decisions, it has become clear that the courts have taken for themselves an authority that Parliament either expressly withheld from the courts at the time of the drafting of the charter or an authority that no reasonable interpretation of the provisions of the charter could support. Specifically, recent decisions of the courts such as those related to marriage, our laws governing the protection of children and prisoner voting rights are not decisions that are properly grounded in the constitutional jurisdiction granted to the judiciary by Parliament.
An unaccountable and unelected judiciary has simply and erroneously appropriated the jurisdiction to legislate by judicial fiat matters of social policy.
In the opinion of the Canadian Alliance, and indeed in my personal opinion, this was never intended to be the jurisdiction of the courts. Political decisions related to social policy must remain the exclusive jurisdiction of a democratically elected Parliament.
While Canadians enthusiastically support the charter they are becoming increasingly concerned about the political direction of the courts. Nevertheless, judges in Canada have taken on a greater role in shaping government policy, an area that was previously reserved for elected officials.
In many cases where the judiciary has confined itself to its proper constitutional role its decisions have had a positive effect. However in many other cases, such as the Sharpe child pornography case, the effect has had detrimental effects on our society and our ability to protect our children.
Whether or not ordinary Canadians agree with conclusions reached by the courts, it is apparent that Parliament's social policy leadership is becoming irrelevant since its choices are limited by the political choices of the courts as Parliament is ordered to comply with judicial policy directions in all existing and future legislation. As a law-making body, Parliament is becoming less relevant, less creative, less effective, and less vigorous as a result of this shift in power.
Recently, three provincial courts have ventured into the realm of social policy and have ordered Parliament to redefine the institution of marriage. It is important to note that Canada is the only country in the world whose courts have determined the issue of same sex marriage to be a rights based issue. The two countries that have legalized to some extent so-called same sex marriage, the Netherlands and Belgium, have done so as a matter of public policy through the legislative process, not on the basis of judicial compulsion.
In respect of this issue, this new wave of judicial activism appears to pay little heed to either Parliament or indeed the comments of the Supreme Court of Canada as set out in prior decisions. In the Egan Supreme Court decision in 1995, Justice La Forest, writing for four judges for a nine court panel, specifically rejected the idea that the traditional definition of marriage improperly discriminated against same sex couples. Rather, he concluded that Parliament was properly entitled to make a distinction between marriage and all other social units. In his words:
...the distinction made by Parliament is grounded in a social relationship, a social unit that is fundamental to society. That unit, as I have attempted to explain, is unique. It differs from all other couples, including homosexual couples.
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