He’s done it again.
Before retiring this spring at the age of 75 – despite never having even been a judge or practising lawyer before attaining the pinnacle of the judiciary in his province – Ontario Chief Justice Roy McMurtry has taken one more kick at the traditional family structure by ruling, with Justices Marc Rosenberg and Jean-Marc Labrosse, that a five-year-old boy now has three legal parents.
The case came before the Ontario Court of Appeal after lower courts determined the Ontario Children’s Law Reform Act could not be interpreted as recognizing more than two persons as parents by birth or adoption. On Jan. 2, however, the appeal court found otherwise.
The development marks the latest involvement by McMurtry in the fundamental reshapings of the definitions of marriage and family. Previously, REAL Women of Canada fingered McMurtry for being the key culprit in giving the initial judicial stamp of approval to same-sex “marriage” in Ontario in June 2003. This set the stage for the eventual move to legislate same-sex “marriage” at the federal level. According to the women’s group, in connection with that case, McMurtry:
• Insisted the same-sex “marriages” of the litigants be performed the same day his decision was handed down. This move prevented a judicial appeal of his decision and curtailed any meaningful parliamentary debate.
• Ordered the homosexual challengers’ court costs to be paid by the Crown. This meant the lawyers for the homosexual litigants were handed hundreds of thousands of taxpayers’ dollars to cover all legal costs in their challenge.
• Attended a reception sponsored by the Ontario Law Society immediately following the decision. McMurtry, together with the other judges involved in the case, feted representatives of homosexual advocacy groups and the homosexual litigants for their legal challenge of marriage. (Photos of this event can be accessed on the internet atwww.realwomenca.com/newsletter/2003_july_aug/article_4.html.)
• Attended a party staged in memory of gay activist George Hislop, a defendant in a 1978 bathhouse raid in Toronto, a period when McMurtry was serving as Ontario’s attorney-general.
The 2003 decision came despite the fact the Charter of Rights explicitly left out sexual orientation, let alone same-sex “marriage” rights, when it was adopted in 1982. The decision also prompted the pro-homosexual Toronto magazine NOW to signal “Hats off to Roy,” in an article suggesting McMurtry could have been “thinking of his place in posterity” when he ruled for same-sex “marriage.” But Gwen Landolt of REAL Women said the decision would have been characterized as “laughable” had it not been so tragic.
Link Byfield, chair of the Edmonton-based Citizens Centre for Freedom and Democracy, said the episode exposed the myth of a functioning democracy with an impartial judiciary. “This was not a minor indiscretion by one judge. It’s an ugly, anti-democratic attitude that pervades the entire Eastern political and legal system from the top down,” he said.
In July 2006, REAL Women filed a complaint of judicial misconduct against McMurtry for not recusing himself and in not disclosing his personal interest in the case after the organization had just learned McMurtry’s daughter lives in a homosexual union. Together with the other concerns, REAL Women surmised the situation created “a reasoned suspicion of a lack of impartiality on the part of the chief justice.”
Despite the allegations, McMurtry stepped forward as a replacement judge to hear the latest important family-related case. It came as no surprise, then, when he along with two other justices ruled the father, biological mother and the mother’s lesbian partner had equal rights and responsibilities as parents under the law to the five-year-old boy.
In a lower court ruling, Justice David Aston had said allowing more than two parents raised the spectre of a child having four or six or a dozen. “Quite apart from social policy implications, the potential to create or exacerbate custody and access litigation should not be ignored,” he said.
But the appeal court found existing law did not take into account “changes to Canadian society” that affected parenting. This required court intervention, it ruled.
The response from Canadian social conservative organizations to the development was immediate. “This ruling clearly shows the extent to which homosexual activists will pursue their agenda regardless of the welfare of children,” said Campaign Life Coalition national president Jim Hughes.
The Catholic Civil Rights League observed that the effect of triple-parent arrangements on children is entirely unknown and there is no clarity as to what will happen to children in such setups if the adult relationships break down.
The Institute for Canadian Values labelled the ruling “unnecessary” and an act of “naked judicial activism,” not unlike the same court’s 2003 ruling redefining marriage. “The only explanation is that the court saw this case as an opportunity to entrench so-called alternative family structures in law without submitting the idea to the rigours of the legislative process,” said founder Joseph Ben-Ami.
The institute is joining Focus on the Family Canada and the Canada Family Action Coalition in calling for a royal commission on marriage and families. Ben-Ami said Prime Minister Stephen Harper must begin acting and not take social conservatives for granted.
“I think the prime minister, and I think the Conservative party, have to spend some time looking at the relationship it has with social conservatives and I think there’s some damage that has to be repaired, some fences that have to be mended,” he told the Vancouver Sun.
Veteran social conservative columnist Ted Byfield said the Ontario court ruling paves the way for legalized polygamy. He cited an earlier federal Justice Department committee paper that reached the conclusion same-sex “marriage” would make polygamous relationships inescapable.
As for judges, Byfield questioned whether they were “diabolically driven to destroy society” or “merely stupid … In short, are we ruled by demons or morons? You can make a case either way.”
As for McMurtry, the controversies seem to be bouncing off him like water off a fish. At the annual opening of Ontario courts in January, provincial Lieutenant-Governor James Bartleman led a standing ovation for the soon-to-be-retired judge, claiming – in perhaps an ironic understatement – that he “has crammed more into one lifetime than many of us could hope to achieve.”
Clifford Lax, a veteran Toronto lawyer who is helping create a “McMurtry Gardens of Justice,” lauded him as being “universally respected” and a man in whom “there is not an ounce of pretense.”
As NOW magazine observed, McMurtry will indeed leave behind a legacy. Any conscientious Canadian must wonder, however, about what will be the true and lasting value of that legacy after the pomp, circumstance and accolades of his current position have faded into the past.