Ottawa – Homosexual activists won a major victory August 6 when the Ontario Court of Appeal, siding with the “gay community,” declared that the Canadian Human Rights Act is unconstitutional because it does not protect “sexual orientation.”
The Globe and Mail and the Ottawa Citizen stated that the decision will, for two specific reasons, have “far-reaching implications”. First, homosexuals may use the ruling to fight for spousal benefits, challenge bans on homosexuals in the military, etc.
Second, the courts are now authorized to by-pass legislatures and simply “read into the law” what judges think the law should be. The green light for this was given by the Supreme Court of Canada four weeks earlier. The Ontario appeal judges were the first to avail themselves of it. In September 1991 the appeal court upheld the September 1991 decision of Ontario judge Joseph McDonald which ruled that Canada’s human rights law is unconstitutional because it does not include sexual orientation among its prohibited grounds of discrimination. (See Interim, November 1991)
At that time Judge McDonald did not cite any reasons for his decision, other than that section 3 (1) of the Human Rights Act, which described the present list of proscribed grounds of discrimination, is contrary to the guarantee of equal benefit of the law set out in section 15 of the Constitution Act of 1982.
Taxpayers foot the bill
The original case was brought before the court by lawyer Philip MacAdam on behalf of Graham Haig, vice-president of the Association of Gays and Lesbians in Ottawa, and Joshua Birch, a former air force captain who was forced to quit the military in 1990 after revealing he was homosexual.
In a letter published in the Ottawa Citizen this spring, Haig stated that the legal costs of the challenge were paid by Canadian taxpayers through the infamous Court Challenges Program. This same program has also supported cases brought before the courts by such pro-abortion feminist organizations as LEAF (Women’s Legal Education and Action Fund). The Program lost a good deal of its funding in this spring’s federal budget, but an intense lobby is currently underway to have full funding reinstated. One of the most vocal supporters of the program is pro-abortion former Supreme Court Justice Bertha Wilson.
No more Democracy?
In its ruling, the Ontario Court of Appeal stated that from now on the Canadian Human Rights Act should be read and applied as though it covered sexual orientation. This move is a clear example of judges attempting to bypass legislative bodies and impose their own private interpretation of the law on the Canadian public.
Ontario Appeal Court justices are appointed, not elected, so do not have to answer to the Ontario electorate in any way.
A similar phenomenon has developed with Human Rights Commissions across the country. A prime example is Max Yalden, chief of the Canadian Human Rights Commission. When the MacDonald decision was rendered, in September 1991, Yalden applauded the ruling and called on the federal government to protect so-called homosexual rights across Canada. For a number of years now the Canadian Human Rights Commission has acted not as an impartial body but as a homosexual activist group, although its mandate is merely to uphold the Human Rights Act as it currently stands.
The Canadians military has no immediate plans to change its current policy as regard homosexuals. Armed forces spokeswoman Lieutenant Karen Mair stated that current military policies will remain unchanged for now. Under current rules, homosexuals in the military are not allowed promotions, cannot transfer from or to the reserves, and are restricted in what assignments they are given.
Treasury Board spokesman Bob Douglas indicated that the board is currently reviewing its policies regarding homosexuals. Current policy rejects extending health care benefits to same-sex “spouses.”
Homosexual activists have promised to use the ruling to achieve as many new rights as possible, but the federal Justice Department can still appeal the ruling to the Supreme Court of Canada. The Justice Ministry has not committed itself to the appeal, as yet.
Justice Minister Kim Campbell, known to be highly sympathetic to the feminist and homosexual causes, has plans to introduce pro-sexual orientation legislation this fall. A number of Conservative MPs, however, prevented her from doing so earlier this year and they continue to oppose her.
Let the politicians know
Interim readers who wish to express their opposition to inclusion of homosexual rights in the Canadian Human Rights Act, or who would like to see its new powers, bestowed on it by the Canadian Courts, overridden by new legislation, should write to the following:
Kent and Wellington Streets
Ottawa, Ontario K1A 0H8
Prime Minister Brian Mulroney
80 Wellington Street
Ottawa, Ontario K1A 0A2