By C. Gwendolyn Landolt National Vice President
REAL Women of Canada
A conflict is shaping up inCanada between its two most powerful institutions, Parliament and the courts. This battle will be the definitive struggle for ultimate control over public policy inCanada. The issue about which the battle is to be fought is the legal definition of marriage.
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 theOntario Divisional Courtin 2001, the opportunity to declare that same-sex unions be recognized as legal marriages. How else can one explain Mr. Justice Robert Blair in theOntariomarriage 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 theOntario 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: