FLAWS IN CANADA

Changing Canada’s Flawed Political and Judicial Systems
By C. Gwendolyn Landolt
National Vice President
REAL Women of Canada

A conflict is shaping up in Canada between its two most powerful institutions, Parliament and the courts. This battle will be the definitive struggle for ultimate control over public policy in Canada. The issue about which the battle is to be fought is the legal definition of marriage.

1. Parliament

It may be that the House of Commons Justice Committee reviewing marriage, which will submit its report in June, will support the traditional definition of marriage as the union between a man and a woman. This definition has been accepted and acknowledged, throughout time, by all major religions and cultures of the world. After receiving the report, Minister of Justice Martin Cauchon must then determine how to proceed with this crucial issue in the House of Commons.

However, it is a major concern that the Liberal leadership candidates, John Manley and Sheila Copps, both publicly support the notion that same-sex unions should be recognized as legal marriage. Front-runner Liberal leader candidate Paul Martin has expressed uncertainty on the issue of same-sex unions being recognized as marriages - but most tellingly, he stated (Globe and Mail, April 29, 2003):

… if the court makes it clear that the marriage issue is a matter of fundamental rights, … I will comply rather than invoke the notwithstanding clause in the Charter of Rights and Freedoms.

I believe fundamentally that governments cannot discriminate on a question of rights.

National Liberal Caucus Research Bureau

By a remarkable coincidence, just four days after the BC Court of Appeal handed down its decision on May 1, 2003, in support of same-sex unions to be recognized as legal marriages, the National Liberal Caucus Research Bureau distributed a document to the Liberal members of the Justice Committee advising them that the federal government had "little legal choice" in light of the court rulings to adopt same-sex marriages into law. The bias of this document was obvious when it stated that, "The recognition in law of same-sex marriage is about fair play, equality, inclusiveness, and justice, values that are consistent with our government’s commitments." This conclusion is wide open to debate. The sole purpose of this document, obviously, was to convince the Liberal MPs on the Justice Committee reviewing the definition of marriage, to meekly acquiesce to the court’s rulings.

The Public Must Become Involved

Canadians have shown that when aroused, they mean business and will not be ignored. This resolve was indicated this past year over Svend Robinson’s Bill C-250, which, if passed into law, would have infringed the Charter of Rights’ basic freedoms of religion and expression.

Thousands upon thousands of letters poured into the House of Commons, leaving no doubt that Canadians wanted this damaging bill withdrawn. As a result, this bill will probably not proceed. Similarly, Canadians from one end of the country to the other, either wrote to or appeared before the House of Commons Justice Committee in support of the traditional definition of marriage, leaving the Committee in no doubt as to their responsibility to protect the present legal definition of marriage in Canada.

All this shows that the Canadian public is a formidable fighting force, once it makes up its mind that the issue is important enough to become engaged. Certainly, the definition of marriage is one such issue. It is crucial that Canadians participate in this great battle over the definition of marriage, the foundation of society as this decision will profoundly affect the destiny of our nation.

Unfortunately, our MPs are apathetic and submissive, accepting the decisions of the courts on public policy matters. This attitude was expressed publicly by Paul Martin in his willingness to abide by the court’s decision on the marriage issue. Such an abdication of responsibility by Parliamentarians must cease because it is unhealthy for democracy. We must insist that Parliament assume responsibility for public policy decisions, rather than allow the handful of unaccountable lawyers appointed to the courts to assume this responsibility for them.

2. The Courts

The courts appear to have reached the conclusion that homosexuals are a minority group requiring their special protection. In defiance of common sense, logic, reason, the law, or even the grave implications to the fabric of society, the courts have granted homosexuals all that they have requested in their numerous court challenges.

Supreme Court’s Manoeuvering on Homosexual Issues

The Supreme Court of Canada has positioned itself to make the decisions on homosexual demands by its 1995 decision Nesbitt and Egan. In that decision, the Court "wrote in" sexual orientation in the equality section (S.15) of the Charter, since that section of the Charter did not include this provision, because, in a 22 to 2 vote, the Parliamentary Committee studying the Constitution in 1981, voted against its inclusion. The Court also concluded that an individual’s equality rights under S.15 were threatened if that individual’s "human dignity" was undermined. (Law v Canada (1999)). "Human dignity," was interpreted by the Supreme Court in the Law case, as existing only if an individual or group feels that self-respect and self worth are present. That is, according to the Supreme Court of Canada, an individual’s or group’s human dignity can be undermined if they feel marginalized, ignored and devalued. This means that equality rights under S.15 of the Charter now rest on the claims of a person’s feelings. This is an extraordinary criterion for courts to use in order to determine "equality" rights under the Charter. This broad interpretation of equality provides a wide opportunity for the courts to protect their favourite groups, regardless of the intent of Parliament, the plain wording of the legislation, or the views of the public.

No Evidence of Discrimination

In this regard, it is significant that in the courts’ many decisions on the equality right of homosexuals, evidence of such discrimination has never been introduced or argued before the courts. Rather, the courts have based their decisions on homosexuals’ equality rights, solely on the assertion of such discrimination by the homosexuals themselves. That is, evidence, such as credible data, has never been introduced to support their claim of discrimination. Instead, the Canadian courts have accepted, as a fact, that homosexuals experience disadvantages because of supposed stereotyping and prejudice. This unthinking presumption by the courts is an indication of their lack of impartiality on the homosexual issue.

Moreover, this interpretation of "equality" by the courts, unfortunately, does not mean "equality" as reasonably understood, but instead has come to mean an entitlement given to favoured groups by the court.

It was this interpretation of "equality" that gave the Ontario Divisional Court in 2001, the opportunity to declare that same-sex unions be recognized as legal marriages. How else can one explain Mr. Justice Robert Blair in the Ontario marriage case concluding that "child bearing and companionship" are the sole defining characteristics of marriage, or the conclusion of Mr. Justice Harry LaForme in that same decision, that the sole purpose of marriage is to provide a "social stamp of approval and acceptance for an adult relationship?" With these simplistic conclusions, the court had no difficulty in deciding that homosexuals’ "human dignity" and "feelings" of self worth were undermined by their inability to enter into legal marriages, and were, therefore, unable to achieve a "social stamp of approval" for their relationships. Such a conclusion, however, ignores the intensive historical, sociological and anthropological evidence establishing the nature and purpose of marriage - the very foundation of society, the heterosexual nature of which transcends cultures, religions and time.

The decision on the definition of marriage touches on social, political, cultural, emotional and legal implications that are extremely complex. Their resolution, was acknowledged even by Mr. Justice Blair of the Ontario Divisional Court, when discussing the possible remedies available to address the problem, who admitted at para. 97, that his proposed transformation of the concept of marriage:

… [will] require a response to a myriad of consequential issues relating to such things as inheritance and property rights, filiation, alternative biogenetic and artificial birth technologies, adoption, and other marriage-status driven matters. The Courts are not the best equipped to conduct such a balancing exercise.

Yet, he ignored his own assessment of the problem, and concluded that the definition of marriage should include same-sex unions, notwithstanding the obvious ramifications of his decision.

It is always possible that some of these judges lack the intellectual capacity to understand the significance of the issue before them, and, instead, obligingly leap into the opening provided them by the Supreme Court of Canada in its interpretation of "equality," in order to reach their politically correct conclusion that homosexual relationships are marginalized by their exclusion from the definition of legal marriage.

It is bizarre, however, that the destiny of our nation is held captive by the inadequacy of these judicial manoeuverings.

Another problem in regard to the court’s reliance on its own subjective perception of "human dignity" as the core value in equality cases is that the Supreme Court of Canada has extended this interpretation to mean, according to the Surrey School Board case (December 2002) that "tolerance" of differences now requires acceptance of these differences, despite one’s own beliefs. That is, the Supreme Court of Canada now requires that Canadians accept homosexual differences, regardless of their own beliefs, since to do otherwise, will cause harm by hurting the feelings of homosexuals.

The Supreme Court’s determination that equality rights under S.15 of the Charter are based on the human dignity or the feelings of the participants, and the court’s requirement that everyone accept these differences in relationships (not merely acknowledge the differences), is an illogical, non-legal, non-judicial absurdity. It is stifling dissent in regard to the homosexual agenda, and is creating a special intolerance all its own.

Absence of Controls on the Courts

How did the courts establish such non-legal criteria, which they have no expertise to determine and distort their own faculties of reason in such a manner that they provide these entitlements to homosexuals?

This extraordinary situation has developed because there are absolutely no checks and balances on our courts, which rightly reason that they can do whatever they please, no matter how spurious their reasoning.

In no other country in the western world have the courts been given such powers as those now enjoyed by our courts. In fact, The Supreme Court of Canada is the most powerful court in the western world - headed by judges whose appointments have never been scrutinized or screened.

The truth is that judges do not have special or secret knowledge with which to interpret the general and ill-defined words in the Charter of Rights. Instead, judges come to the bench with their own political and ideological axes to grind and, in the present situation, make their decisions accordingly.

It is arrogant of judges to assume they know what is best for us. This assumption also ignores the reality that the very basis of their appointments is political. Judges are not above the political passions of the day, but are a part of them. Judges are well-connected lawyers, who have the political clout to secure their appointments to the bench. Canadians should not be held hostage to the presumptions of these few unaccountable, appointed lawyers who have no distinctive recommendation, other than these political ties.

Courts Not Set Up to Determine Public Policy

Moreover, the courts should not determine public policy in Canada because they are not set up to carry out this important function. Courts do not have access to the social facts of the issues before them as does Parliament; they do not have the luxury of time to adequately reflect on the issue; they do not have access to research facilities available to Parliamentarians; and they do not have access to the practical experiences of the public on issues which are growing increasingly complex, economically, socially and scientifically. Nor are the courts equipped to evaluate the full range of policy alternatives available to the government. As a consequence, it is not possible for the courts to entirely grasp the long-range implications and ramifications of the arguments placed before them by the litigants.

The courts also proceed only on the basis of the arguments placed before them. For example, on social issues, the court hears most frequently from special interest feminist/homosexual groups, which are funded by the federal Court Challenges Program. Added to this are the arguments of the Attorney General which frequently provide an unenthusiastic support for the law because the Attorney General’s arguments are based often on political concerns, according to the dictates of the Attorney General’s political party, rather than on legal concerns. Only occasionally do individual, independent, self-supporting organizations muster the necessary funds to intervene in these court cases and oppose this limited debate.

Canadian Courts Have Become Centres of Radicalism

Unlike any other country in the world, the unchecked power of Canadian courts has led them to become hotbeds of radicalism. For example, courts in other countries have rejected same-sex marriages. The New Zealand Court of Appeal in Quilter et al. vs. the Attorney General (New Zealand) (1998) held that marriage was the union of a man and a woman only. This latter conclusion, by the way, was upheld by the UN Human Rights Committee in Geneva in 2002, on the basis that the International Covenant on Civil and Political Rights (which Canada has ratified) only recognizes unions between a man and a woman as marriages.

In fact, nowhere else in the world, with the exception of the Netherlands and Belgium, has marriage been changed to include a union of two persons of the same sex. Yet Canadian judges, using their appointed, unaccountable positions, are ready to make this momentous decision on our behalf.

Courts in Support of Same-sex Marriages

The unfortunate reality we must face is that the three provincial Courts of Appeal (BC, Ontario and Quebec), where court challenges by homosexual activists on the legal definition of marriage have been launched, will support same-sex marriages. In the first appeal decision handed down on May 1, the BC Court relied heavily on the interpretation and analysis of the Ontario Divisional Court in reaching the conclusion that marriage should include same-sex unions.

The Supreme Court of Canada has flexed its political muscles several times on the homosexual issue and will undoubtedly pronounce that same-sex marriages are necessitated by reason of the Court’s absurd interpretation of "equality" under the Charter. This decision is to take place in late 2004 once the appeals of the three provincial marriage cases have come before the Court.

Deluge of Pro-homosexual Cases

Canadians thus will soon be inundated with a series of court decisions based on the questionable, highly subjective "equality" interpretations of the "human dignity," i.e., hurt feelings of homosexuals/lesbians The courts will decide that legal marriage must include same-sex unions. Nowhere else in the world have courts had the effrontery and arrogance to make such a revolutionary decision on behalf of the public and especially on such specious, irrational grounds as the "human dignity" (feelings) of homosexuals.

Something must be done to change this unacceptable situation. The court’s ambitious assuming of power to determine public policy must end - without delay. Something must be done, now to curb the power of the courts. We cannot wait for the changes to the appointment system of judges which are to take place under a new Prime Minister. We must undertake a pre-emptive strike against the courts before the marriage cases are completed with all the media fanfare and preening of the homosexual activists who will "explain" to us that same-sex "marriage" is inevitable.

We must launch immediately, a two-pronged attack on the deeply flawed judicial and legal systems in Canada which so gravely undermine democracy.

A. Changing Canada’s Flawed Judicial System

Historically, the courts have been at arms length from the public, supposedly standing above the roar and rattle of the general public and the politics of the day.

Today, this is no longer the situation. The courts in Canada have unelected politicians delving into the public policy arena without the slightest deference to Parliament. The courts will not show any restraint until they are forced to do so by the public’s reactions against them.

Since the courts have taken on policy decisions as politicians, the time has come for them to be treated as politicians.

Judges must be made aware that their position as judges is no longer protected by the myths surrounding their supposed impartiality. Those days are over. The public must place a check on the presumptions of the judges that they are all-powerful and above criticism. They are not.

Restraining the Judges

In order for the courts to realize that their days of protection from the public’s reaction are over, it will be necessary for individuals to write to the Chief Justices of each of the provincial Courts of Appeal (BC, Ontario and Quebec) and the Supreme Court of Canada. These letters must advise them that the courts’ participation in public policy areas is not acceptable. Judges must be advised that the court’s proper role is to interpret the law according to the intent of Parliament, not to make up public policy in accordance with their personal philosophical and ideological beliefs.

You should be forewarned, however, that in response to your letter, you will receive a brief letter from the Registrars of the Courts advising you that judges cannot directly reply and the judge’s role is not to be involved with the public on the issues before them. In making this response, the Registrars are merely protecting the judges, attempting to continue the myth that judges act for the public good and are above the political process. Regard the Registrar’s response as meaningless in today’s world of judicial supremacy. Judges cannot have it both ways - on the one hand, making public policy decisions, and on the other hand, expecting to remain immune from public criticism because of their exalted position.

Please write also to the newspapers expressing your concerns about the courts’ assumption of power to determine public policy matters.

The names and addresses of the Chief Justices are as follows:

The Rt. Hon. Beverley McLachlin, Chief Justice, Supreme Court of Canada, 301 Wellington Street, Ottawa, Ontario K1A 0J1

The Hon. Lance S.G. Finch, Chief Justice, Court of Appeal for British Columbia, The Law Courts, 800 Smithe Street, Vancouver, BC V6Z 2E1

The Hon. R. Roy McMurtry, Chief Justice, Court of Appeal for Ontario, Osgoode Hall, 130 Queen Street West, Toronto, Ontario M5H 1E3

The Hon. R.R. Michel Robert, Chief Justice, Court of Appeal for Québec, 1, Notre-Dame Street East, Suite 17.12, Montréal, Quebec H2Y 1B6

B. Changing Canada’s Flawed Political System

In order for democracy to be restored to Canada, Parliament must break from its apathy and resume control over our public policy issues. Our elected members of Parliament must no longer be permitted to submissively accept the decisions of the courts on the pretense that they are "bound" to follow these egregious decisions. Many elected officials, such as Minister of Justice Martin Cauchon prefer to take this submissive approach to the courts, since it reflects his own views and those of the other Liberal elites. In fact, the courts are now a part of the Liberal party’s orthodoxy in that the courts share and reinforce the Liberal government’s beliefs and policies. In short, the Canadian courts are upholding federal policies, rather than placing any restraint on them.

At the present time, MPs and Cabinet Ministers believe they will not pay a political penalty for passing legislation dictated by the courts, and, therefore, willingly allow the courts to pre-empt their role. The Prime Minister, the Minister of Justice and individual MPs must know that they will pay a penalty for their failure to take responsibility for public policy - and especially so on an issue so fundamental to society as the definition of marriage.

Parliament’s Duty

It is the duty of Parliament to uphold the public interest, and it is not in the public interest to permit same-sex marriages as a response to pressure from a special interest group. If the courts choose to grant marriage rights to homosexual partners based on their convoluted non-judicial, subjective approach to determining equality issues, the Canadian public must no longer support them. Citizens must insist that Parliamentary democracy be restored to Canada by requiring Parliament to act pre-emptively on the marriage issue, and pass legislation stating that marriage is exclusively a union between a man and a woman only.

The only way this will be accomplished is by public pressure. It’s up to us to provide this all important pressure - as we did last year in regard to Bill C-250 (hate propaganda amendment by MP Svend Robinson). We put a stop to that bill. We must now insist that Parliament oppose the will of the unaccountable courts, by asserting its own will on behalf of the public.

Conclusion

It is fully realized that what is being recommended is to undertake a revolutionary approach to the difficulties presented by the courts and Parliament today. The matter is so grave, the ramifications to society so overwhelming, that we are obliged to undertake this new approach to correct the problem within our present dysfunctional legal and political system. This initiative is Project Justice. It is also, Project Democracy. The time is now to begin this unique journey to restore democracy to our country. We cannot delay. There is too much at stake.