National Affairs Rory Leishman

On Jan. 10, Orville Nichols was in a state of shock: He knew he might lose in a ruling that day by a panel of the Saskatchewan Court of Appeal in the Marriage Commissioners Reference, but he probably was not expecting to lose by an overwhelming five to nothing decision.

Nichols is a devout Baptist who has served as a marriage commissioner in Saskatchewan since 1983.  Having performed more than 10,000 marriages without a problem, he got into trouble with the law on April 18, 2005, when a gay man listed in court records as M.J  asked him to perform a same-sex marriage. Nichols responded that he could not, in good conscience, solemnize a same-sex marriage. M.J. insisted that he needed a civil marriage, because, as a Roman Catholic, he could not get married within his church to another man.

Nichols invited M.J. to contact one of the several other marriage commissioners in Regina who had no qualms about performing a same-sex marriage. M.J. did so and got married as he had planned in a civil ceremony on May 5, 2005.

That was not the end of the matter. M.J. promptly filed a complaint with the Saskatchewan Human Rights Commission, accusing Nichols of having violated his equality rights as a homosexual under the Saskatchewan Human Rights Code.

Nichols maintains that he has a right not to solemnize same-sex marriages, by virtue of the freedoms of conscience and religion guaranteed in both section 2 of the Canadian Charter of Rights and Freedoms and section 4 of the Saskatchewan Human Rights Code, which affirms “the right to freedom of conscience, opinion and belief and freedom of religious association, teaching, practice and worship.”

Given this impasse, the matter came before the Saskatchewan Human Rights Tribunal, which held in 2007 that the freedoms of conscience and religion are trumped by the equality rights of homosexuals to obtain a government service. Consequently, the Tribunal ordered Nichols to pay $2,500 in damages to M.J. On appeal, the Saskatchewan Court of Queen’s Bench upheld the ruling in 2009.

The outcome did not sit well with members of the Saskatchewan Party led by Premier Brad Wall. To safeguard the rights of all marriage commissioners to freedom of conscience and religion, the Wall government drafted an amendment to the provincial marriage act, stating: “Notwithstanding The Saskatchewan Human Rights Code, a marriage commissioner is not required to solemnize a marriage if to do so would be contrary to the marriage commissioner’s religious beliefs.”

The Wall government then went cap in hand to the Court of Appeal, seeking permission for the Legislative Assembly of Saskatchewan to enact the proposed amendment. That was a grievous error: In the Jan. 10 ruling, the Court unanimously rejected the request, claiming that the amendment would violate the putative equality rights of homosexuals in the Charter.

While this judgment conforms with similar dictates by the Supreme Court of Canada in other cases, it is entirely illegitimate. There is nothing in the plain language or the history of the Charter that confers special equality rights on homosexuals.

To the contrary, during deliberations on the Charter in Parliament, members of the Joint Committee on the Constitution overwhelmingly rejected a proposal to single out equality rights for homosexuals by a vote of 22 to 2. But alas, arrogant judicial activists on the Supreme Court of Canada have no regard for even such clear manifestations of the expressed will of elected representatives of the people.

What can be done? Ideally, the Saskatchewan Legislature should enact protection for marriage commissioners and invoke the notwithstanding clause of the Constitution to safeguard the legislation from judicial amendment or suppression. But that is not going to happen: like most Canadian politicians, members of the Saskatchewan Party are loath to exercise the constitutional authority of elected representatives of the people to curtail the judicial usurpation of legislative power.

That leaves one alternative: In The Trouble With Canada…Still, William Gairdner summons Canadians to press Parliament and the provincial legislatures to emulate the practice of direct democracy in Switzerland and the United States, by giving the people the final say on legislation and constitutional amendments in referendums. It’s a fundamental reform that deserves serious consideration.