Prime Minister Paul Martin could hardly have made two worse appointments to the Supreme Court of Canada than Madam Justice Rosalie Abella and Madam Justice Louise Charron. As judges on the Ontario Court of Appeal, this pair of judicial activists has demonstrated supreme contempt for both democracy and the rule of law.
Consider Abella’s ruling in R. v. C.M., 1995 OCA – a case dealing with consensual anal intercourse over a three-year period between a man and the niece of his fiancé. The affair began when he was 24 and the niece was only 14, so he was duly charged under Section 159 of the Criminal Code with sodomizing a person below 18 years of age – an offence punishable by a sentence of up to 10 years in prison.
Abella, with the support of two colleagues on the Ontario Court of Appeal, let the man off on the ground that the Criminal Code violates the alleged equality rights of sodomites in Section 15 of the Canadian Charter of Rights and Freedoms, by stipulating age 18 as the minimum age of consent for sodomy, but only 14 as the minimum age of consent to all other sexual acts.
“In my view,” wrote Abella, “Section 159 (of the Criminal Code) arbitrarily disadvantages gay men by denying to them until they are 18 a choice available at the age of 14 to those who are not gay; namely, their choice of sexual expression with a consenting partner to whom they are not married. Anal intercourse is a basic form of sexual expression for gay men.”
Note that the man charged in this case was not gay. Typically, that was of no account to Abella. She views the Charter as a licence to roam far beyond the facts of the dispute under adjudication for the purpose of changing the law to conform to her personal, ideological convictions.
In enacting the Charter, Parliament deliberately excluded any reference to sexual orientation, but that, too, is of no account to judicial activists like Abella. First, the Ontario Court of Appeal arbitrarily read sexual orientation into Section 15 of the Charter and then, Abella amended Section 159 of the Criminal Code to reduce the age of consent for anal intercourse to 14. In doing so, she dismissed grave concerns expressed by counsel for the government of Canada that legalizing consensual sodomy with teenagers as young as 14 could have disastrous consequences for the lives and well-being of many vulnerable youngsters.
In M. v. H., 1996 OCA, Charron demonstrated a no-less-cavalier disregard for judicial prudence, democracy and the rule of law. M. and H. were a pair of lesbians, who had been living together for several years.
After their relationship ended, M. sued H. for spousal support pursuant to the Family Law Act of Ontario, despite the stipulation in Section 29 of the Act that “spouse” means either of a man and a woman who are married to each other or have cohabited continuously for at least three years. Counsel for M. called upon the court to amend the act to confer spousal rights on homosexual couples on the grounds that the heterosexual definition of “spouse” in Section 29 violated the equality rights of homosexuals in Section 15 of the Charter.
Just a few months earlier in Egan v. Canada, 1995 SCC, the Supreme Court of Canada refused to amend the heterosexual definition of spouse in the federal Old Age Security Act to include same-sex partners. Citing this precedent, Mr. Justice George Finlayson of the Ontario Court of Appeal affirmed in a dissenting opinion in M. v. H. that there can be no conflict between the Charter and the heterosexual definition of spouse in the Ontario Family Law Act.
“The legislature has opted to regulate heterosexual unions in recognition that this is not only the traditional, but also the basic, social structure for the procreation of children,” he observed. “The fact that the legislators have not yet chosen to recognize same-sex relationships as meriting equal attention is neither surprising nor unconstitutional.”
With this conclusion, Finlayson respected both the express will of the Ontario legislature and the precedent set by the Supreme Court of Canada in Egan. In short, he upheld both democracy and the rule of law. Charron did neither.
In her ruling for the majority in M. v. H.,, she defied both the Ontario legislature and the Supreme Court of Canada by decreeing, in effect, that same-sex couples are entitled under the Charter to the same rights and benefits in law as heterosexual couples. In a brazen expression of contempt for the legislature, she went so far as to declare that the exclusion of same-sex couples from the definition of spouse in the Family Law Act was not even “rationally connected” to the purpose of the act, which is “to encourage and strengthen the role of the family.”
Upon further appeal, the Supreme Court of Canada upheld the revolutionary imposition of gay rights decreed by Charron in M. v. H., In doing so, Chief Justice Beverly McLachlin and her fellow judicial activists on Canada’s top court not only ignored their own precedent in Egan, but also flouted the desire of Parliament and the provincial legislatures to support marriage and the natural family.
Unlike McLachlin, Abella, Charron, and other judicial activists, Finlayson is a proponent of judicial restraint. He respects the fundamental separation of legislative and judicial powers. He understands that judges have a duty in a democracy to uphold the law and the Constitution as enacted and originally understood by elected representatives of the people in the legislative branch of government.
In making appointments to the Supreme Court of Canada over the past 30 years, prime ministers Trudeau, Mulroney and Chrétien have passed over exemplary judges like Finlayson in favour of judicial autocrats like McLachlin. Now, Martin has done the same. His elevation of Abella and Charron to the country’s top court is certain to exacerbate the judicial subversion of democracy and the rule of law.
Rory Leishman is a columnist with the London Free Press.