Mr. Justice Michel Bastarache, who retires from the Supreme Court of Canada on June 30, was an excellent judge when he stuck to upholding the law. But alas, he did not always do so. Like most of his colleagues on the court over the past 25 years, he repeatedly encroached upon the legislative powers of Parliament and the provincial legislatures.

Granted, the separation of legislative and judicial powers is not absolute. Judges have a responsibility to make such marginal modifications to the common law, statute laws and the Constitution as might be necessary to accommodate changing social and economic circumstances.

Thus, in the Radio Reference, JCPC 1932, the Judicial Committee of the Privy Council, then the highest court of appeal for Canada, read jurisdiction over radio communications into the provision in Section 92(10) Constitution of Canada Act, 1867, that Parliament has exclusive jurisdiction over “telegraphs, and other (interprovincial) works and undertakings.” In this way, the court reasonably adjusted the Constitution of Canada as originally understood to the invention of radios.

In contrast, consider the judgement of the Supreme Court of Canada in M. v. H., SCC 1999. In this case, the respondent M. contended that she had an equality right under Section 15 of the Canadian Charter of Rights and Freedoms to sue her lesbian partner H. for spousal support. In a concurring opinion in M. v. H., Bastarache agreed with this argument. Yet, there is no provision for equality rights for homosexuals in Section 15 or any other section of the Charter. And it’s clear that the omission was deliberate. In 1981, the Constitution committee of Parliament overwhelmingly rejected a proposal to include equality rights for same-sex couples in the Charter on a vote of 22 to two. Likewise, in 1994, the Ontario Legislature defeated a motion to include spousal benefits for same-sex couples in the province’s Family Law Act.

Moreover, in Egan v. Canada, 1995 SCC, the Supreme Court of Canada held that same-sex couples have no right to spousal benefits under the Old Age Security Act. Thus, by mandating spousal benefits for same-sex couples in all federal and provincial laws in M. v. H., Bastarache not only repudiated the express will of Parliament and the Ontario Legislature, but he also violated the precedent set by the Supreme Court of Canada in Egan just four years earlier.

In the Reference re: Same-Sex Marriage, 2004 SCC, Bastarache followed up by concurring in the unanimous pretence of the court that the extension of marriage for civil purposes to same-sex couples “points unequivocally to a purpose which, far from violating the Charter, flows from it.” With this egregious judgment, Bastarache endorsed the determination of the court to violate the original understanding of the Charter; revolutionize the meaning of marriage in Section 91(26) of the Constitution of Canada Act, 1867 and shatter a long line of judicial precedents defining marriage in law as the voluntary union for life of one man and one woman.

In two notable dissents, Bastarache took a firm stance on principle in opposition to Chief Justice Beverley McLachlin. In R. v. Sharpe, 2001 SCC, he rejected her judgement for the court that sexual perverts have a Charter right to possess child pornography of their own making.

Likewise, in R. v. Labaye, 2005 SCC, he disagreed with McLachlin’s ruling that swingers have a right to engage in perverse exhibitions of group sex in a place open to the public. In this case, Bastarache was joined by Mr. Justice Louis Lebel. In a scathing joint dissent, they upbraided their colleagues for “departing from the case law of this court and proposing a new approach to indecency that is, in our view, neither desirable nor workable. It constitutes an unwarranted break with the most important principles of our past decisions regarding indecency.”

Quite so. In Sharpe and Labaye, Bastarache fulfilled his duty to uphold the law and the Constitution as originally understood. He should have done so consistently.

As it is, Bastarache will be remembered, at best, as a typical judicial activist on the McLachlin court who at least had the decency to oppose the court’s outrageous decisions to legalize the possession of child pornography and authorize public performances of group sex.

Rory Leishman, The Interim’s national affairs columnist, is author of the book Against Judicial Activism and a columnist with both the London Free Press and Catholic Insight.

Judicial Decisions

M v. H
marriage reference