Last Updated:Friday - 09/24/2010
June 23, 2003
End run on Marriage laws
Revoking charter needs politicans 'with guts'
CHARLES MOORE
SPECIAL TO THE WCR
Whatever their respective views on the issue of gay "marriage" might be, Canadians would do well to be alarmed that the short-circuiting of democracy represented by the Ontario Court of Appeals' June 10 decision declaring Canada's traditional marriage laws unconstitutional, effective immediately.
Who knows? Maybe if this radical overhaul of the definition of marriage were put to a vote in Parliament, or to a public referendum, the notion of same-sex marriage would be supported, but this change, like the April 30 decision by the British Columbia Court of Appeal that statutes banning homosexual marriage are unconstitutional, has not been subjected to the democratic process, and that is wrong.
No legislature in Canada has ever passed a law rescinding the traditional definition of marriage as a union of one man and one woman. But this is the brave new world of judicial activism at work.
In this particular instance, it is pertinent to note that sexual orientation is mentioned nowhere in the Charter of Rights and Freedoms, but rather has been arbitrarily "read into" the charter by political activist judges. In fact, rights predicated on sexual orientation were deliberately excluded by the drafters of the charter, so that "reading in" is based on nothing more substantial than ideological advocacy by unelected, unaccountable justices.
On July 1, 1999, Madam Justice L'Heureux Dube, then a member of the Supreme Court of Canada, stated at a conference on same-sex partnerships in London, England: "Changes in the legal realm" have been accompanied by a general failure of the political process to recognize the rights of lesbians and gays without the pressure of court decisions behind them. . . . Courts are taking the lead in changing society's attitudes to same-sex partnerships."
And in her Dec. 19, 2002, dissent to the Supreme Court of Canada's decision in Gosselin v the Attorney General of Quebec, Madam Justice Louise Arbour argued: "The role of the courts as interpreters of the charter and guardians of its fundamental freedoms against legislation or administrative infringement by the state requires them to adjudicate such rights-based claims."
And here you have it in a nutshell. These judges believe they know better than the people-elected lawmakers, and by extension the democratic electorate, and that they have the right to override legislatures as they see fit.
In December 2002, three judges of the Newfoundland Court of Appeal explicitly acknowledged in a ruling that judicial activism has "gone too far in Canada," and called for containment of the courts' powers to second guess elected legislatures, concluding that while the charter gave new powers to the judiciary to pass judgment on goals of legislation, "it does not confer on the judiciary untrammelled licence to usurp the policy domain of the elected branches of government beyond that point."
Fortunately, something the charter's drafters did explicitly include is the so-called "notwithstanding clause," which allows governments to override the charter and its judicial interpreters, as Alberta Premier Ralph Klein has vowed to do if the federal government accedes to the Ontario court decision and revises the definition of marriage. "If there's any move to sanctify and legalize same-sex marriages we will use the notwithstanding clause. Period. End of story," Klein commented.
Good for Ralph! However, it, of course, wouldn't be the end of the story. Judicial tyranny appears to be well entrenched, and one fears that substantial numbers of Canadians are blind to the consequences of the supremacy of democratically accountable Parliament being usurped by the unaccountable courts, and many actually believe that the Charter and its distempered effects are a good thing.
Senator Anne Cools has noted that "Our principles and Canadian parliamentary responsible government democracy have maintained that justices' participation in public and political controversy is undesirable and forbidden. . . . That many good justices are now compromised and in a terrible position is the making of some judges. This is a new and current problem, a post-Charter of Rights and Freedoms problem."
Abolishing the charter would effectively put the kibosh on political activist judges hijacking legislative authority. The charter is a monstrosity clumsily tacked on to the traditions of parliamentary democracy. Legislative legitimacy is to be found in the democratic character of Canada's political institutions, supported by free elections, parliamentary authority, free speech and a free press. All of these are now under attack by charter-facilitated judicial tyranny.
Revoking the charter would require a constitutional amendment approved by the House of Commons and at least two-thirds of the provinces having at least 50 per cent of the provinces' total population. That's a mighty steep hill to climb. In the meantime, however, the notwithstanding clause is there as a means of pre-empting many of the charter's worst effects. We just need more elected representatives with the guts to stand up to the judicial totalitarians.
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