Judges’ dilemma
Sunday February 27, 2005
I promised myself that I would not write another column about the same-sex marriage debate.
The whole thing strikes me as a greater waste of time, resources, and political energy than even the much-reviled gun registration program.
Same-sex couples already have the same rights as all other couples. They can split their pensions, share incomes, name each other as beneficiaries, list each other as dependents for medical insurance, adopt children, get divorced, pay alimony…
Their right to enter a legal union, by whatever name, will not change, regardless of what parliament decides about the definition of the word “marriage.”
The parliamentary decision will be essentially meaningless. It will do nothing either to encourage or to prevent our children from entering into a relationship – marital or common-law – with another person, gay or straight.
So I am NOT going to write about that.
I’m going to write about our judges – particularly our Supreme Court judges – and the Canadian Charter of Rights and Freedoms.
Charter of Rights and Freedoms
Let’s get a few facts straight about the Charter. Pierre Trudeau did not invent it. John Diefenbaker did. Way back in 1960.
Good old fulminating, arrow-straight, staunchly Conservative John Diefenbaker called it a Canadian Bill of Rights. But because it never occurred to a loyal monarchist to repatriate our constitution – which in those days was still the British North America Act of 1867, lodged with the British Parliament in London – he made his Bill of Rights an ordinary Act of Parliament.
As an ordinary statute, courts could not use it to nullify laws that contradicted it. So it had little legal impact.
Pierre Trudeau applied his considerable intellect to fine-tune Diefenbaker’s Bill of Rights, and incorporated it as the Canadian Charter of Rights and Freedoms in the Constitution Act of 1982.
Any ordinary Act of Parliament, you see, can be changed by any other session of parliament. Usually, the change merely requires only a simple majority.
But a constitution cannot, and should not, be that easily amended. So amending the new Constitution requires approval by both Houses of Parliament in Ottawa, plus the assent of at least two-thirds of the provinces, representing at least 50 per cent of the total Canadian population.
Because the Charter is embedded in the Constitution itself, it takes precedence over all other laws passed by any parliament, legislature, or municipal council in the country.
Erroneous Criticisms
Now I hear numbers of Canadians bleating that the Charter has been hijacked by the gay and lesbian agenda. They should read the Charter. At no point does it refer to gays, lesbians, or homosexuality.
Or they claim that the Charter doesn’t express the true will of Canadians.
The Charter guarantees all Canadians certain rights, such as
- freedom of religion, freedom of thought, freedom of expression and freedom of the press, peaceful assembly, and freedom of association.
- equal treatment before and under the law; equal protection against discrimination “based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”
- the right to participate in political activities, to vote and to be elected.
- the right to be presumed innocent until proven guilty, the right to retain a lawyer, the right to an interpreter.
- the right to enter and leave Canada, and to move to and take up residence in any province or to reside outside Canada.
Do Canadians really want to rescind any of those rights? I hope not.
nbsp; Finally, they protest that judges are now making our laws, not our elected members. Wrong! Judges do not, and cannot, make laws. They can only interpret the existing laws.
Imprisoned by existing laws
No law can ever anticipate every possible application. Judges have the unenviable task of determining how an existing law would apply to a new situation that no one envisaged when the law was written. That’s what’s happening with marriage.
Unfortunately, the more rigid a law’s definition, the more likely it will eventually cause a miscarriage of justice. California’s “Three Strikes and You’re Out” legislation deliberately offered no leeway for leniency. So now people face life imprisonment for shoplifting. Resisting arrest. Vagrancy…
And California’s judges have no choice.
Judges, in fact, operate in a kind of prison of their own – the prison of existing laws. They cannot break out of that prison and invent new laws, however much they might like to.
When laws or customs conflict with each other – such as whether the traditional definition of marriage has the right to exclude gay and lesbian unions – judges must rule in accordance with the superior law.
Which in this case – indeed, in every case – is the Canadian Constitution. And the Charter embedded in that Constitution is clear – all Canadians must have equal rights.
Subjective sentencing
Those who argue against judges’ rulings that gays and lesbians deserve the same right as other Canadians to marry are really asking judges to disregard the laws of the country. They want judges to overlook, ignore, or override certain laws because those laws have unpopular implications.
I consider that a far more dangerous precedent than any “liberal” interpretation of Charter rights. If judges can disregard the Constitution, should they next turn a blind eye to the Criminal Code? To the laws governing corporations and charities?
Should judges dispense justice according to their personal predispositions?
Every judge would then be a law unto herself. There would be no consistency, no assurance that the verdict in one court would resemble the verdict in any other court.
Do those who whine about the Supreme Court really want that kind of legal chaos? Should these persons ever appear in court, do they really want their judge’s decision determined more by the state of his intestinal dyspepsia rather than by the laws of the land?
They probably don’t realize it. But that’s what they’re asking for.
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Copyright © 2002 by Jim Taylor. Non-profit use in congregations and study groups permitted; all other rights reserved.
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