After 29 years as a judge, Supreme Court Justice Charles Gonthier is hanging up his red robes this summer, having reached the mandatory retirement at age 75. With his retirement ends an era. He was the last of Canada’s top judges to temper the exercise of his judicial power, in deference to other branches of government.
Gonthier started his career as a lawyer in Montreal in 1952 and immersed himself in the politics of the Canadian Bar Association and other lawyers’ guilds. He was first appointed to the Quebec bench as a Superior court judge in 1974 and made the leap to the Supreme Court of Canada in 1989 as a Brian Mulroney appointee.
While Gonthier cannot be considered a conservative philosophically, he was, until his retirement, the most conservative member of the nine-member Supreme Court. His record on life and family issues was mixed at best. Catholic Civil Rights League vice-president and lawyer Phil Horgan told The Interim, “If you look at his dissenting opinion in the Surrey School Books case, it takes a certain level of courage to be the voice of restraint and moderation.”
In his dissent in the Surrey case, Gonthier argued the court should not second-guess a school board that had rejected certain books with a subtle homosexual theme as inappropriate for young children. He stated, “I believe courts should be reluctant to assume that they possess greater expertise than administrative decision-makers with respect to all questions having a human rights component.”
And he argued, “To permit the courts to wade into this debate risks seeing Section 15 (equality) protection against discrimination based upon sexual orientation being employed aggressively to trump Section 2(a), protection of the freedom of religion and conscience.”
Gonthier also dissented with the majority on the Sharpe child pornography case and the M v H spousal status for homosexuals case. Yet, points out Mr. Horgan, “He was part of the court that agreed with the introduction of ‘sexual orientation’ to the Charter (in the 1995 Egan decision.)” The Egan case essentially formed the foundation for the recent court rulings re-defining marriage.
Although Gonthier may not be missed greatly, when it comes to issues affecting life and family, his replacement is almost certain to disappoint if previous appointments by Prime Minister Jean Chretien are anything to go by. In fact, the prime minister has a track record of appointing judges who can best be described as both activist and pro-abortion. And, as Chretien has exclusive authority to name Gonthier’s replacement this fall, he will have named six of the current nine judges on the bench.
Based on the age of the current judges, should they serve to retirement, Horgan comments, “All those judges will be with us for another 11 years and at least three of them will be there for another 20 years. Chretien’s appointments will have life well beyond his term of office.”
