On June 10, the three unelected judges who sit on the Ontario Court of Appeals overturned a traditional definition of marriage that has stood since time immemorial and which was reaffirmed by Parliament less than four years ago. This decision does not merely imperil religious freedom, nor is it simply another blow to the traditional family. It is, rather, one of the most odious and audacious acts of judicial activism in Canada to date.
The decision of the Appeals Court marks the final stages of democracy’s erosion in Canada and provides a foretaste of the nemiocracy (rule by lawyers) to come. By forsaking principles for opinions, and weighing law by consensus rather than reasoned conviction, politicians allowed a vacuum of moral leadership to ensue, which was quickly filled by the judiciary.
Former Chief Justice Antonio Lamer, who presided over both the Morgentaler and Rodriguez cases, has done much to define the place of the activist judiciary. Professor Edward McBride notes that, while speaking at the University of Toronto, Lamer remarked that “the force of public opinion, rather than the strength of personal conviction, or the weight of established law, determined his concurring vote in Regina v. Morgentaler.” While this admission is troubling in its own right, most disconcerting is the fact that even public opinion is often disregarded in Court decisions; it seems that the judicial elite need not adhere to their own aphorisms.
In the Vriend case, the court established “sexual orientation” as grounds for discrimination despite the fact that both the federal government that enacted the Charter and the provincial legislature of Alberta had failed to do so. In the Chamberlain case, the Supreme Court ruled that a public school board of British Columia had no grounds to ban homosexual propaganda from a Grade 1 class. Finally, with this most recent decision by the Ontario Appeals Court, the expressed intentions of the current government have been dismissed.
Significantly, there was by no means “a vast majority” in favour of the court’s decision in any of the above cases. In fact, the courts dictate the opinions they claim to intuit. Opinion does not inform law; rather, law manipulates opinion.
Unsurprisingly, this distressing perversion of the judicial procedure has elicited no action from Parliament. Although this government has stated that it “has no intention of changing the definition of marriage,” it has not reiterated this policy since the ruling of the court, and has shown no indication of invoking the notwithstanding clause – the only vehicle by which parlimentary supremacy and the rule of law can be reasserted.
Canadian law has degenerated from a sober declaration of social norms, into a magpied collection of progressive attitudes. The values formerly espoused only by members of what McBride calls “a judicial elite with a taste for power tinged by gnostic arrogance,” are now being “read” into law at all levels of the judiciary. While the preamble to the Charter of Rights and Freedoms states that “Canada is founded upon principles that recognize the supremacy of God and the rule of law,” these noble words now smack of irony.