National Reporter

Marriage activists and critics of judicial activism have yet another reason to be alarmed, after a recent series of provincial court decisions overturning the centuries-old definition of marriage. New information has come to light involving a key judge’s apparent conflict of interest in hearing the issue.

Homosexual activists made no secret of their legal strategy of trying to have marriage redefined in the courts by taking their legal case to courts in three different provinces, hoping for a favourable decision in at least one of them. Appropriately, the first judge to hear the case, B.C. Supreme Court judge Duncan Shaw, tossed the case out, saying his court had no jurisdiction to hear the matter.

Yet, other cases in the lower courts in Ontario and Quebec were successful. However, it was not until the Ontario Court of Appeal heard the matter and ordered that homosexuals be given marriage licences immediately, instead of allowing for either an appeal or parliamentary action, that the issue exploded from an obscure legal matter into a front-page national crisis.

And, it is the judge who led with his chin – and who selected the other judges on the three-judge panel and wrote the Court of Appeal’s order to municipalities to immediately marry homosexuals – who is involved in an apparent conflict of interest.

Chief Justice Roy McMurtry, it has been revealed, is not indifferent to the homosexual rights agenda, as he has a lesbian daughter.

That news comes from British Columbia, where the judge’s son passes his time as a colourful, would-be politician and teacher. Jim McMurtry, who was most recently trounced as the Liberal Party’s candidate in South Surrey-White Rock after referring to home schooling as “a form of child abuse,” spilled the beans in a local newspaper.

The younger McMurtry revealed in a recent letter to the editor of the Surrey Now, that, “My own sister is in a homosexual union” (Jan. 26, 2006).

That revelation will come as a shock to court watchers of both the left and the right, who know that judges must recuse or disqualify themselves from hearing cases in which they could be perceived to have a conflict of interest.

According to the Canadian Judicial Council, the official body that considers complaints against judges, “Judges should disqualify themselves in any case in which they believe that a reasonable, fair-minded and informed person would have a reasoned suspicion of conflict between a judge’s personal interest (or that of a judge’s immediate family or close friends or associates) and a judge’s duty.”

That Justice McMurtry’s daughter may have had a personal interest in the outcome of the case seems probable, given the special benefits that a redefinition of marriage could confer on her homosexual relationship.

Yet, the chief justice not only did not recuse himself from the case, he omitted informing the court of this potential conflict. Yet, the Judicial Council makes clear that, “A judge should disclose on the record anything which might support a plausible argument in favour of disqualification. The judge should make disclosure on the record and invite submissions from the parties.” That did not happen.

The issue of recusal is not insignificant. A failure to recuse can call the administration of justice into disrepute, especially when dealing with contentious social issues. Other judges clearly recognize this fact. Current Supreme Court Justice Michel Bastarache recused himself from hearing the high profile Latimer case involving the conviction of the father of a murdered, disabled Saskatchewan girl. Bastarache recused himself because he has a disabled child.
Similarly, in 1997, U.S. Supreme Court Justice Clarence Thomas recused himself from hearing a case involving the Virginia Military Institute, because his son was a student at that institution.

Retired justice Roger Kerans, who served as a judge in Alberta for 27 years, says, “Judges should step aside if, in fact, the judges are not indifferent in the case before them. Moreover, Canadian judges accept the ‘Caesar’s wife’ standard – they agree that they should quit, or recuse, whenever there is a reasonable suspicion about their indifference.”

The news about Justice McMurtry unwillingness to recuse himself will compound the deep concerns pro-marriage activists have already developed about him. Not only did they strongly disagree with the shallow legal reasoning he used to arrive at a redefinition of marriage, they were also concerned by another appearance of conflict the judge displayed after rendering his decision. Mere days after imposing homosexual marriage on the province of Ontario, McMurtry attended a celebratory party for the homosexual litigants in the marriage case. That fact would have remained unknown, except that a homosexual activist group published the picture of their favourite judge at that party with his arms around the litigants.

The Canadian Judicial Council apparently frowns on such displays of possible bias. It says, “Judges should also consider whether mere attendance at certain public gatherings might reasonably give rise to a perception of ongoing political involvement.”

Whether Justice McMurtry survives scrutiny of this latest revelation remains to be seen. While the Canadian Judicial Council may frown on such behaviour, the only body empowered to do anything about the issue is Parliament. It has the power to impeach a judge by a majority vote in the House of Commons.

In 139 years of Canadian history, only four judges have come close to impeachment. All four resigned before the matter was put to a vote.