The London Free Press

The London Free Press
Tuesday, September 7, 2003

By Rory Leishman

Canadian Alliance leader Stephen Harper has vowed that the federal Liberals will not get away with foisting gay marriage on the people of Canada. "We aren't going to let these guys off the hook," said Harper. "They wanted to introduce this through back channels. They didn't want to come to Parliament, they didn't want to go to the Canadian people and be honest. They had the courts do it for them. They put the judges in they wanted, then they failed to appeal, failed to fight the case in court."

Harper is right. On June 10, a three-judge panel of the Ontario Court of Appeal unilaterally amended the definition of marriage in the common law and the statute law of Canada to include same-sex couples. All three judges were appointed to the Ontario Court of Appeal at the behest of our Liberal Prime Minister Jean Chretien.

The same is true of five of the eight justices currently serving on the Supreme Court of Canada. While the remaining three owe their positions to former prime minister Brian Mulroney, they are no less disposed than the Liberal appointees to subvert the powers of Parliament. One of them, Beverley McLachlin, was designated two years ago by Chretien to serve as the Chief Justice of Canada.

Up to 1995, the concept of gay rights had no place in the Canadian Charter of Rights and Freedoms. Then came the judgment by the Supreme Court of Canada in Egan v. Canada. At issue in this case was a provision in the Old Age Security Act that confined spousal benefits to a spouse of the opposite sex. A homosexual who had been denied benefits under the Act, petitioned the courts to amend the law on the ground that the exclusion of spousal benefits for same-sex spouses violated the equality rights that are allegedly guaranteed to homosexuals in section 15 of the Charter.

In fact, Parliament and the provincial legislatures had deliberately excluded special rights for gays in section 15 and all other sections of the Charter. Likewise, the nation's first ministers excluded any reference to gay rights in either the 1987 Meech Lake Accord or the 1992 Charlottetown Accord.

Nonetheless, in Egan, counsel for the homosexual complainants invited the Supreme Court of Canada to read special rights for gays into section 15 of the Charter. In a break with the express wishes of Parliament at the time the Charter was enacted in 1982, the Chretien Liberal government concurred. Without seeking any new mandate from Parliament on such a vital issue of public policy, the cabinet authorized counsel for the Attorney General of Canada to agree that gay rights are implicit in the Charter.

Not surprisingly, the Supreme Court of Canada went along with this new Liberal policy. In Egan, the court undertook, in effect, to amend the Charter to include equality rights for homosexuals, but declined also to amend the Old Age Security Act to include benefits for same sex couples. Nonetheless, just four years later, this same Court flouted its own precedent in Egan, by ruling in M. v. H. that Parliament and the provincial legislatures must amend hundreds of laws including the Old Age Security Act to provide same sex couples with the same benefits as common law couples.

Liberal, Progressive Conservative and New Democratic Party governments meekly complied with this judge-ordered revolution in the family laws of Canada. Those governments had a choice, as the Chretien Liberal government has now: They could have invoked the notwithstanding clause of the Constitution to prevent nine appointed judges on the Supreme Court of Canada from invoking the Charter as a pretence for usurping the legislative authority of the elected representatives of the Canadian people.

At least, Harper and the Canadian Alliance are willing to stand up to the courts and the Chretien government on the gay marriage issue. And so too, are some Liberal backbenchers, including Pat O'Brien (London-Fanshawe) and Paul Steckle (Huron-Bruce).

Will enough of these principled Liberal MPs join with the Canadian Alliance to vote down this machination by the Chretien Liberals and the judiciary to impose gay marriage? Let us hope so, if only for the sake of reinstating parliamentary democracy in Canada.