On July 1, Madam Justice Claire L’Heureux-Dubé retired from the Supreme Court of Canada with accolades from a host of feminist lawyers, law professors and fellow judges. The National Association of Women and the Law went so far as to hold a wine and cheese celebration in her honour.
What accounts for such elation? Bonnie Diamond, executive director of the NAWL, explains that she particularly appreciates L’Heureux-Dubé for having very clearly taken, “not only her legal analysis, but her analysis of substantive equality to her judgments.”
For this same reason, University of Western Ontario law professor Robert Martin has denounced L’Heureux-Dubé as an unabashed judicial activist. He explains: “If there are any Canadians left who believe in the rule of law, and constitutional government, they should celebrate L’Heureux-Dubé’s departure. She has consistently treated the Constitution and the law as if they were her personal possessions. She decides almost entirely on ideological grounds and disregards the law and the Constitution at her whim.”
Of course, L’Heureux-Dubé rejects such criticism.In an August 21, 1999 address to the Canadian Bar Association, she denounced critics like Martin for undermining the independence of the judiciary.
Yet in this same speech, she admitted to the charge of judicial activism. “The activist judge,” she said, “is often portrayed as one with an inclination towards judicial intervention and, in particular, with a willingness to change the law. Yet most people would agree that it is appropriate for judges to make changes in the common law and the interpretation of legislation or the Constitution when necessary, particularly to adapt it to contemporary values.”
Among law professors, Martin is a rarity. He emphatically disagrees with the notion that it’s appropriate for the judiciary to change statute laws and the Constitution. He clings to the traditional, democratic view that judges have a duty to uphold statute laws and the Constitution as duly enacted and originally intended by elected representatives of the people in the legislative branch of government.
As a primary exponent of the novel theory that judges have a right to change the law to accord with their understanding of evolving contemporary values, L’Heureux-Dubé had no compunction about endorsing the decision of the Supreme Court of Canada in the 1995 Egan case to read equality rights for homosexuals into the Canadian Charter of Rights and Freedoms, although Parliament had explicitly rejected such an amendment. Likewise, she enthusiastically backed the ruling in Vriend v. Alberta (1998) that amended the Alberta human rights code to include sexual orientation as a prohibited ground for discrimination, and the decision in M. v. H. (1999) that redefined the word spouse in provincial laws to include partners in same-sex relationships.
Martin maintains that judges have no authority under the Charter or any other provisions of the Constitution to mount such brazen intrusions into legislative jurisdiction.
In a case last year involving Trinity Western University, the Supreme Court of Canada dealt with the refusal of the British Columbia College of Teachers to approve the university’s teacher-education program, because all students at the university were required to promise to, “refrain from practices that are biblically condemned, including premarital sex, adultery, homosexual behaviour and viewing of pornography.” L’Heureux-Dubé held in dissent that in signing this pledge, Trinity Western students had violated the equality rights of homosexuals under the Charter and were therefore not entitled to teach in the public schools.
In support of this conclusion, L’Heureux-Dubé noted that students at Trinity Western are obligated, “to hate the sin, but love the sinner” She would have none of this distinction. Quoting from the opinion of the federally funded homosexual lobby, EGALE (Equality for Gays and Lesbians Everywhere), she argued that, “requiring someone not to act in accordance with their identity is harmful and cruel. It destroys the human spirit.”
L’Heureux-Dubé had no authority in law to make such an outrageous pronouncement from the bench. In Trinity Western, as in so many other cases, she undertook to impose her own pagan ideology on Canadians rather than uphold the law and the Constitution. As Martin says – good riddance to her.