Former Supreme Court justice Charles Gonthier was the lone dissent in M V. H a ground-breaking gay rights decision.
Charles Gonthier, a former justice of the Supreme Court of Canada, passed away recently at the age of 80. Appointed by Brian Mulroney in 1989, he developed a reputation as a conservative during his 14 years on the country’s top court.
The Canadian Press reported in its obituary that Gonthier offered “a more conservative interpretation of the individual rights guaranteed under the Charter of Rights and Freedoms.” Jamie Cameron, professor of constitutional law at York University’s Osgoode Hall, told the Globe and Mail that Gonthier had a less expansive view of the Charter, saying, “He offered a valuable voice of restraint, at a time when Supreme Court decision-making took the judges into the public policy domain.”
He co-wrote the majority opinion upholding the criminalization of marijuana possession in R. v. Malmo-Levine. In R. v. Caine (2001), he concurred in the unanimous decision that Criminal Code child pornography provisions R. v. Sharpe (2001) were constitutional and wrote the dissenting opinion in Sauvé v. Canada (Attorney General) (2002), which extended the vote to prisoners.
Cameron said, “The Gonthier approach showed a healthy respect for the democratic process.”
He was the lone dissenter in M v. H (1999), which established that same-sex couples had a right to equal treatment under the Charter. The ruling extended the rights of common-law couples to homosexuals. In his dissent, Gonthier said the conclusion of the majority opinion ignored the purpose of the Ontario law in granting common-law couples the same rights as married couples in terms of legal protections for dependent women when relationships broke down.
He said same-sex couples do not face similar issues. Respecting Ontario’s elected representatives, he said, “In my opinion, the text of the legislation, the preamble and the legislative history inescapably lead to the conclusion that such is its very purpose.” He said same-sex couples do not face similar issues and thus the court should not have amended family law to grant new rights to homosexual couples that the legislature never intended.
He also noted that, “Our system of family law is, to a great degree, based upon the legal rights and duties flowing from marriage,” a recognition of the unique, reproductive nature of opposite-sex relationships.
Just as he respected the legislative prerogative of elected representatives, Gonthier respected the rights of parents.
He wrote the dissenting opinion in Chamberlain v. Surrey District School Board No. 36 (2002), which denied the British Columbia school board the ability to refuse to use three books designed to promote the homosexual lifestyle. Chief Justice Beverley McLachlin wrote for the majority, “Tolerance is always age-appropriate; children cannot learn unless they are exposed to views that differ from those they are taught at home.”
On the other hand, Gonthier wrote, “Parents are clearly the primary actors, while the state plays a secondary, complementary role” and “the Charter does include the right to bring up and educate one’s children in line with one’s conscientious belief” when parents act in the “best interests” of their children. Importantly, he said that parents are presumed to be acting in their children’s best interests “unless the contrary is shown.”
Despite his usual deference to the political process, he was part of the 5-4 majority in Egan v. Canada (1995), which established that sexual orientation constituted a prohibited basis of discrimination under Section 15 of the Canadian Charter of Rights and Freedoms. In 1998, he joined the 6-2 majority in Vriend v. Alberta, which forced the province to include sexual orientation as a basis of legal protection under the Alberta Individual Rights Protection Act.
On life issues, his rulings were mostly disappointing to pro-lifers. In the 1989 Tremblay v. Daigle case, one of his first decisions on the Supreme Court, the court unanimously declared that the unborn child does not have legal status as a person. In 1999, he concurred with Justice Peter Cory’s majority decision that ruled tort claims cannot be brought against a mother by a child or his representative for fetal damages caused by the mother’s negligence in Dobson (Litigation Guardian of) v. Dobson.
However, Gonthier was part of the 5-4 majority in 1993 that upheld Canada’s prohibition of assisted suicide in Rodriguez v. British Columbia (Attorney General). And in 2001, he joined the unanimous decision in R. v. Latimer that a 10-year minimum sentence in a so-called “mercy killing” case did not amount to cruel and unusual punishment under the Charter.
Over the past 26 years, numerous Charter challenges have invited the court to legislate from the bench. In his 14 years on the Supreme Court, Gonthier mostly resisted the pressure to do so, often provided a critical voice warning against judicial imperialism, but sometimes came up short in consistently defending the principles he hinted at holding in certain decisions.
