GAY RIGHTS

The judicial imposition of "gay" rights
by Rory Leishman

Forty years ago, buggery was a criminal code offence in Canada, carrying a maximum penalty upon conviction of 14 years in prison. Today, there is no such provision in the criminal code. The law has been so completely transformed that anyone who still insists in public that anal intercourse is a sinful and dangerous perversion, especially in the midst of an AIDS epidemic, could end up in jail as a prisoner of conscience. What has gone wrong? What accounts for this sudden, drastic and reckless revolution in the law?

Former prime minister Pierre Trudeau bears much of the responsibility. As justice minister in 1967, he introduced one of the worst pieces of legislation in Canadian history-an omnibus amendment to the criminal code that included provisions to sanction the sale of contraceptives, legalize abortion, and condone anal intercourse between consenting adults in private. Let us, though, not pin all the blame on Trudeau. Upon final passage in 1969, his bill was supported by his fellow Liberals, the New Democrats, and 12 Progressive Conservatives, including party leader Robert Stanfield.

Charter of Rights

Twelve years later, Parliament and the provincial legislatures embraced another, even more disastrous, Trudeau-inspired reform-the Canadian Charter of Rights and Freedoms. The Charter is a truly Orwellian document: it means the opposite from what it says. Under the pretence of upholding the Charter, the Supreme Court of Canada has undermined the historic rights and freedoms of Canadians, usurped the legislative authority of elected representatives of the people, and subverted the rule of law.

Alberta: the Vriend rulings

Consider the arrogant decision of the Supreme Court of Canada in Vriend v. Alberta, 1998 SCC. The appellant in this case, Delwyn Vriend, was fired from his post as a laboratory co-ordinator at King's University College, an Evangelical Protestant institution in Edmonton, for openly flouting a college rule forbidding the practice of homosexuality. He appealed to the Alberta Human Rights Commission, complaining that the College had unlawfully discriminated against him on the ground of sexual orientation. The Commission held that it had no lawful basis to proceed with the complaint, because sexual orientation was not a prohibited ground for discrimination in the Alberta human rights code.

Prior to the Charter, the courts were bound to uphold the plain meaning of the law. Today, that is no longer the case. With backing from "gay rights" activists, Vriend appealed to the courts, claiming the exclusion of sexual orientation from the Alberta human rights code violated the guarantee of equality rights for homosexuals in section 15 of the Charter. To the amazement and consternation of many Albertans, Madam Justice A. H. Russell of the Court of Queen's Bench not only agreed with this argument, but also unilaterally changed the law, by amending the Alberta human rights code to include sexual orientation as a prohibited ground for discrimination.

The matter proceeded to the Alberta Court of Appeal, which reversed Russell's judgment, albeit in only a two-to-one ruling. Writing for the majority, Mr. Justice John McClung upheld the traditional principles of parliamentary supremacy. In his view, an unelected judge should not presume to second guess the wisdom of laws enacted by elected representatives of the people. "Whatever the private concerns of the reviewing judge," he wrote, "that judge is duty bound to uphold the law." McClung noted that "the vast majority of Canadians obey the laws that are imposed upon them by their chosen representatives. In short, they keep to the statutes and they are entitled to expect that their judges will do so too. They do not want their judges to redesign them when those statutes are written in perfectly understandable words of daily French or English usage."

McClung's pointed and well-chosen remarks did not sit well with the Supreme Court of Canada. In a ruling on 2 April 1998, the country's top court sided with Russell, by citing an alleged guarantee of equality rights for homosexuals in section 15 of the Charter as a pretence for amending the Alberta human rights code to include sexual orientation as a prohibited ground for discrimination. This decision was wholly illegitimate. There is no mention of sexual orientation in section 15 or any other section of the Charter. Moreover, this omission, like the omission of sexual orientation from the Alberta human rights code, was deliberate. During clause-by-clause consideration of the Charter by a Special Joint Committee of the Senate and House of Commons on the Constitution of Canada, New Democrat MP Svend Robinson proposed an amendment to include sexual orientation in section 15. The committee decisively repudiated the motion by a vote of 22 to two.

Sexual orientation: the Egan case, 1995

Has the Supreme Court of Canada paid any heed to this clear parliamentary declaration? Not at all. In Egan v. Canada, 1995, the Court decreed that sexual orientation is analogous to race, colour, religion and other grounds explicitly included in section 15. And on the basis of this distortion of the law, the Court presumed in Vriend to write sexual orientation into the Alberta human rights code.

The Egan decision is also noteworthy, inasmuch as it is a tangle of contradictions, affirming the fundamental importance of marriage and the natural family while imposing equality rights for homosexuals. At issue in this case was the claim by the appellants, James Egan, a longstanding gay rights activist, and his partner, John Norris Nesbit, that the exclusion of same-sex partners from spousal benefits under the Old Age Security Act violated the equality rights of homosexuals.

While agreeing that such rights are implicit in section 15 of the Charter, a majority of the Supreme Court held that the definition of spouse in the Old Age Security Act is nonetheless consistent with the Charter. In support of this view, Mr. Justice Gerald La Forest maintained in his reasons for judgment in Egan that marriage is essential to the nurturing of children.

Furthermore, he said, "many of the underlying concerns that justify Parliament's support and protection of legal marriage extend to heterosexual couples who are not legally married. Many of these couples live together indefinitely, bring forth children and care for them in response to familial instincts rooted in the human psyche. These couples have need for support just as legally married couples do in performing this critical task, which is of benefit to all society. Language has long captured the essence of this relationship by the expression 'common-law marriage.'" In conclusion, La Forest held that "homosexual couples are not, therefore, discriminated against," because Parliament had good reason to confine spousal benefits under the Old Age Security Act to married and common-law couples.

M v H case, 1999

Four years after Egan, the Supreme Court of Canada dealt with a similar issue in M. v. H., a case that arose out of an acrimonious dispute between an estranged lesbian couple. After M. moved out of their common home, she sued H. for spousal support pursuant to the Ontario Family Law Act, although section 29 of the Act stipulated that the support provisions in the law applied only to married and common-law spouses. Backed by the Ontario Human Rights Commission, M. argued such a restrictive definition of spouse

violated the rights of lesbians to equality under the Charter.

It happened that the Ontario Legislature had debated this issue at length in 1994, when the New Democratic Party government of former premier Bob Rae introduced an omnibus bill to redefine the definition of spouse in Ontario law so that support benefits, adoption rights, and other entitlements would be extended to homosexual couples on the same basis as heterosexual couples. The bill touched off a storm of public protest so intense that it provoked a backbench revolt within the NDP caucus and prompted the Liberals to oppose the bill, although party leader Lyn McLeod had written a letter to Rae just a few months earlier, demanding to know why he had not changed the laws of the province to accommodate "gay rights". In the end, enough dissenting New Democrats joined with the Liberals and the Progressive Conservatives to defeat the radical measure.

Did the Supreme Court of Canada respect the express wishes of the Ontario Legislature in M. v. H.? Did the Court follow its own reasoning in Egan? Not at all. The Court abruptly reversed course, by holding that the exclusion of same-sex couples from section 29 of the Family Law Act cannot be demonstrably justified as a reasonable limit on the equality rights of homosexuals. However, instead of unilaterally changing the law as in Vriend, Mr. Justice Frank Iacobucci warned in his reasons for judgment in M. v. H. that the Court would declare section 29 of the Family Law Act of no force or effect, unless the Ontario Legislature came up with a satisfactory amendment within six months.

Harris caves in

In response to this judicial blackmail, the Harris government might have done nothing. In that event, section 29 of the Family Law Act would have lapsed after the six-months deadline with the result that only married couples would be entitled to support benefits under the Act. And that would have been all to the good. It was a tragic mistake in the 1970s to start extending spousal benefits to couples in common-law unions that are far more fragile than marriages, despite the epidemic of divorce over the past 40 years. If only out of regard for the health and safety of children and youth, federal and provincial legislators should encourage stable marriages, by reverting to the confinement of spousal benefits to married couples.

What, though, did the Harris government do in reaction to the Supreme Court of Canada's judgment in M. v. H.? It caved in. The Harris Conservatives introduced into the Legislature an omnibus gay rights bill of its own that included amendments not just to the Family Law Act, but also to 66 other Ontario statutes. Despite having emphatically repudiated the Rae government's similar "gay rights" legislation in 1994, the Ontario Liberal Party under its new leader Dalton McGuinty hailed this new Progressive Conservative "gay rights" bill as "historic." Likewise, Ontario New Democratic leader Howard Hampton described the legislation as "very important." And how long did the Legislature take to ponder this enormously complex, portentous, "historic," and "very important" bill? Fewer than three hours. In one of the most bizarre actions in the history of parliamentary government, all three parties in the Ontario Legislature imposed a radical "gay rights" law on the people of Ontario with no democratic debate.

Premier Ralph Klein In Alberta, the government of Premier Ralph Klein has also abjectly capitulated to the determination of the Supreme Court of Canada to impose its "gay rights" agenda on the country. Following the Court's Vriend decision, Stockwell Day, Jason Kenney, and a number of other pro-family politicians and activists urged Klein to seek a mandate from the people of Alberta in a referendum for invoking the notwithstanding clause of the Constitution to shelter the Alberta human rights code from judicial interference. Klein refused to do so. At least, though, he promised to build legal "fences" around the Vriend ruling so it would not affect family law and marital status. Alas, that promise soon proved worthless.

In response to a lawsuit brought by two lesbian couples, the Klein government rushed a bill through the Alberta Legislature on 13 May 1999, amending the province's Child Welfare Act to permit gay couples to adopt children. A few days later, Klein bowed to the ruling of the Supreme Court of Canada in M. v. H. Every other provincial premier, government, and legislature has done the same. With more or less enthusiasm, they have all acquiesced in the dictatorial imposition of "gay rights" by our supreme judicial masters in the Supreme Court of Canada.

There is but one exception. On 23 February 2000, Victor Doerksen, a Conservative backbencher in the Alberta Legislature, introduced a private member's bill that not only defined marriage as exclusively between a man and a woman, but also invoked the notwithstanding clause of the Charter to shelter the law from interference by gay activists in the courts. This bill- the first in Canada specifying that marriage is exclusively a union of a man and a woman-was passed by the Legislature in a free vote on 15 March 2000. Klein was discreetly absent for the vote. His Justice Minister Dave Hancock stood up against the legislation, after explaining that he believed the notwithstanding clause of the Charter should only be invoked "when it's absolutely necessary for the better functioning of society."

British Columbia

Meanwhile, across Canada, courts and human rights commissions have grown ever bolder in their determination to impose special rights for gays and lesbians. In 1998, Madam Justice Mary Saunders of the British Columbia Supreme Court set an ominous precedent, by striking down a resolution adopted by the district school board for Surrey, British Columbia, which declared that three books depicting children with same-sex parents-Asha's Mums; Belinda's Bouquet; and One Two Dads, Brown Dad, Blue Dads-were not suitable for use as recommended learning resources for students in kindergarten and Grade 1.

Saunders ruled that the resolution violated the equality rights of homosexuals in the Charter. In addition, she held that the school board must uphold the secular nature of the public schools, by precluding any "decision significantly influenced by religious considerations." In effect, she barred all theologically orthodox Christians and Jews from serving on a public school board. While this outrageous ruling was overturned on appeal, that's hardly reassuring. Saunders is an up-and-coming judge. In 1999, Prime Minister Jean Chretien and Justice Minister Anne McLennan secured her promotion to the British Columbia Court of Appeal, where she is better placed to advance her radical "gay rights" and secular agenda.

Across Canada: Religious freedom at stake

Even now, conscientious Christians and Jews should beware. Anyone can run afoul of human rights tribunals and the courts, simply by professing in public the traditional teaching of Judeo-Christian morality on the sinfulness of homosexual relations. Hugh Owens understands this point all too well: on June 15, he was told by the Saskatchewan Human Rights Board of Inquiry that he had violated the equality rights of three gay men by expressing his opinion on gay and lesbian sex through an advertisement in the Saskatoon Star Phoenix that consisted solely of a pictograph of two men holding hands superimposed with a circle and slash-the symbol of something forbidden- and a list of Bible verses condemning the practice of homosexuality. For this offence, the Board directed Owens to pay the complainants $1,500 each in damages. He is appealing the ruling to the courts. If he loses and still refuses to comply with the directive of the Board of Inquiry, he could be charged with contempt of court, convicted and consigned to jail as a Christian prisoner of conscience.

The same fate threatens Scott Brockie, the conscientious owner of a Toronto print shop who has been ordered by an Ontario Human Rights Board of Inquiry to pay $5,000 in damages to Ray Brillinger, a gay rights activist, for refusing Brillinger's request to print materials for the Canadian Lesbian and Gay Archives. Heather MacNaughton, the adjudicator assigned to this case, acknowledged in her ruling on 24 February 2000 that Brockie is a sincere born-again Christian who had printed materials for businesses operated by homosexual customers, but could not in good conscience do the same for an organization whose stated aim is to "help lesbian and gay men live free, proud and positive lives." She held that Brockie could not lawfully discriminate against the Archives, because equality rights for homosexuals trump the rights of Christians to freedom of religion in the provision or withholding of a public service. By this reasoning, she concluded that Brockie was obligated by the Ontario human rights code and the Charter of Rights and Freedoms to print materials for the Lesbian and Gay Alliance, despite his religious convictions on the sinfulness of homosexual behaviour.

Yet MacNaughton insisted: "In fact nothing in my order will prevent Brockie from continuing to hold and practise his religious beliefs. Brockie remains free to hold his religious beliefs and to practise them in his home, and in his Christian community....What he is not free to do, when he enters the public marketplace and offers services to the public in Ontario, is to practise those beliefs in a manner that discriminates against lesbians and gays by denying them a service available to everyone else."

Like Owens, Brockie is appealing the ruling. The Canadian Religious Freedom Alliance, an association of the Christian Legal Fellowship, The Evangelical Fellowship of Canada, and The Catholic Civil Rights League have intervened on Brockie's behalf. In a factum prepared for the Alliance, David M. Brown maintains that MacNaughton's distinction between "'public right, but private practice' does not accord with the jurisprudence of the courts on the scope of freedom of religion."

As authority, Brown cited a ruling by the Supreme Court of Canada on May 17, 2001, that upheld the rights of graduates of Trinity Western University (TWU) to teach in the public schools of British Columbia, despite their religious objections to the practice of homosexuality (see "Assault on freedom of religion" C.I., Sept. 2001, pp. 30-32). The Court acknowledged, "The public dimension of religious freedom and the right to determine one's moral conduct have been recognized long before the advent of the Charter."

However, the Court also warned in its TWU judgment that "the proper place to draw the line in cases like the one at bar is generally between belief and conduct. The freedom to hold beliefs is broader than the freedom to act on them. Absent concrete evidence that training teachers at TWU fosters discrimination in the public schools of B.C., the freedom of individuals to adhere to certain religious beliefs while at TWU should be respected."

What does the Court's distinction between belief and conduct entail? In a commentary in the Globe and Mail on 31 May 2001, Ian Hunter, a professor emeritus at the University of Western Ontario law school, suggested,

"In essence, the Supreme Court has ruled that there is a right to believe what you want as long as you never communicate those beliefs or attempt to put them into practice. Trinity Western ought not to be celebrating such a Lilliputian view of religious freedom.

"If I may paraphrase the university's victory in words that might still have a certain resonance among its own faculty and students: You are free to be hearers of The Word but not doers; you may render unto God when on campus but only to Caesar off campus. By their deeds no one shall know them."

Like Brown, Brockie's lawyer, Iain Benson, the executive director of the Centre for Cultural Renewal, takes a more optimistic view of the Court's ruling in TWU. Which of these distinguished lawyers is right-Brown, Benson or Hunter? That's impossible to say, because judicial activists on the Supreme Court of Canada no longer abide by the precedents set by their own Court. Recall the glaring inconsistency between M. v. H. and Egan. In the former, the Court ruled the denial of support benefits to same-sex couples in the Ontario Family Law Act was unconstitutional, despite its holding just four years earlier in Egan that the denial of pension benefits to same-sex couples in the Old Age Security Act is entirely consistent with the Charter.

Peter McCormick, a professor of political science at the University of Lethbridge, is a Charter enthusiast, yet he concedes in his book Supreme At Last: The Evolution of the Supreme Court of Canada that there was no legal basis for the sudden turnaround between Egan and M. v. H. He writes:

"It was less that the two situations were massively different (indeed, La Forest's rhetoric on the family probably fits better with M. v. H.) than that the personnel (of the Supreme Court of Canada) had changed and the Court's centre of gravity had changed with it."

Given such rapid evolution of doctrine, legislators must feel that they are shooting at hidden targets without knowing if the targets have been moved since the last time the lights were on. Even if you approve the Court's ruling in any individual case, this mutability might make you a little nervous. If you disapprove, it tends to make you angry.

Yet most Canadians are complacent. They think they are safe, because they have conformed their thinking to the corrupt pattern of court-defined human rights that contradicts more than 2,000 years of Judeo-Christian teaching. That's a dangerous delusion. While purporting to uphold the Charter, the Supreme Court of Canada has subverted the entire rule of law.

The disposition of our robed dictators to change the law to suit their ideological preferences does not just threaten Brockie and Owens, but undermines the genuine human rights and fundamental freedoms of every citizen. Canadians had better quickly awaken to the peril, because John Philpot Curran was surely right: "The condition upon which God hath given liberty to man is eternal vigilance; which condition if he break, servitude is at once the consequence of his crime, and the punishment of his guilt."

Rory Leishman, 836 Wellington St., London, ON, N6A 3S7. Home/Office Phone: 519-439-2676, Home Page: http://members.home.net/rleishman