Last Updated:Friday - 09/24/2010
September 8, 2003
Blame the Charter of Rights
Current same-sex marriage is but a symptom
 | Opinion |
CHARLES MOORE
SPECIAL TO THE WCR
At the national Liberal caucus retreat in North Bay, Ont., last month, Jean Chretien told his MPs, many of whom oppose -- or at least fear electoral fallout from -- the government's same-sex marriage agenda, that at the end of the day their votes in Parliament on the issue won't make any difference.
The House of Commons is to have a "free vote" on the Liberals' gay marriage bill which has been referred to the Supreme Court for advice on making it safe from constitutional challenge, once the high court rules.
However, Chretien declared, "Even if the bill is defeated, the law stands. That's the reality."
Well thanks Mr. Chretien for clarifying that parliamentary process is dead in Canada, and that democratic accountability in lawmaking is ready to be buried with it. Chretien was quoted affirming that the legality of gay marriage was essentially etched in stone by recent court rulings in Ontario and British Columbia. If Parliament has no say in defining the laws of the land, of what relevance is it?
I remember the day in 1980 that Pierre Trudeau announced that he would patriate the British North America Act and draft a new Canadian constitution. Hearing the news on CBC Radio, I turned to my wife and said something to the effect of: "This is perhaps the biggest disaster in Canadian history." That assessment has been amplified over the subsequent 23 years.
Thanks to Trudeau's charter, Canadian law is no longer exclusively changeable by Parliament or provincial legislatures. In effect, the rule of law no longer applies in Canada, but is rather subject to the whim -- and political ideology -- of a handful of politically appointed and democratically unaccountable judges.
In a newspaper interview, former Supreme Court Justice John Sopinka, now deceased, maintained: "I think it took a little while for it to sink in that when the court is dealing with charter cases, they're not dealing with the law as we used to deal with it. Now, when the court is asked to strike down a statute, it is often dealing with the types of decisions that were made previously by elected representatives."
Unhappily, opinion polls indicate that most Canadians have swallowed the propaganda that the charter is a wonderful thing, and have little grasp of what was lost when Trudeau patriated the Constitution -- notably that prior to 1982, Canada operated under the principle, rooted in the Magna Carta, that Parliament had the final word and had to account for its decisions at election time.
As Abraham Lincoln astutely declared: "If the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the people will have ceased to be their own rulers."
For example the drafters of the charter explicitly and deliberately refused to include sexual orientation as a protected status in the document, but that didn't stop political activist judges from "reading in" gay rights provisions that they essentially conjured out of thin air, egged on of course by the socially left Chretien government, which hadn't the guts to pursue its gay-advocacy agenda in Parliament.
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."
I am among a minority of Canadians, which I hope is growing, who want to see the Charter of Rights and Freedoms abolished and supremacy of Parliament restored. Abolition 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 steep hill to climb, although it should remain the ultimate objective for Canadian defenders of democracy.
The practical near-term hope of curbing the courts' social engineering rampage is to elect governments willing to exercise section 33 of the charter's "notwithstanding clause" to correct at the legislative level judicial excesses like the same-sex marriage decisions. This they can do.
Commenting on the Vriend decision, Supreme Court Judge Iacobucci noted, "Section 33, the notwithstanding clause, establishes that the final word in our constitutional structure is in fact left to the legislature and not the courts." Hello; are you listening Jean Chretien?
Section 33 enables a legislature to trump the charter by creating a statute that can withstand charter rules for up to five years, renewable.
Heavy-handed abuse of power? Well, the notwithstanding clause actually does appear in the charter. Sexual orientation isn't. Who is really abusing power?
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