Courts Reject Traditional Values - Vriend & Rosenberg

REAL Women of Canada and its Alberta affiliate, the Alberta Federation of Women United for Families (AFWUF), has, at its own expense, recently intervened unsuccessfully in two court decisions dealing with homosexuality. We intervened because we believe the court must hear the other side of this controversial issue. Because of our intervention, the court cannot in later years claim that it had no choice but to rule in favour of homosexual rights. It did have a choice, based on sound legal reasoning, which it chose to ignore.

1. Vriend Case (AFWUF Intervention)

The Supreme Court of Canada in the Vriend decision ordered the Alberta legislature to include the words "sexual orientation" in its legislation because the Court stated its omission offends the equality section of the Charter of Rights. This decision was contrary to the opinion of the Alberta legislature, which had decided against including sexual orientation in its human rights legislation on a number of occasions.

This decision by the Supreme Court is of no small consequence, since it means that the Court has now assumed jurisdiction over legislative omission, not just its enactments.

It is significant that in reporting this decision, the media steadfastly stated that the case arose because the Christian Reform College, Kings College, in Edmonton, had fired Vriend "because he was gay". This was not the real story. In fact, Vriend, a former student at the college, who grew up in the Christian Reformed Church, knew that restrictions on homosexual behaviour were part of the code of the college. He insisted, however, that his values should trump those of the institution. He publicly wore a T-shirt emblazoned with a homosexual slogan, and also publicly entered into a homosexual relationship. Vriend repeatedly insisted during interviews with the media and in his negotiations with the college, that the college was wrong and had to change, and that his sexual practices and rights were more important than the college's Christian Code of conduct. Vriend was, in fact, deliberately setting up a challenge to the Alberta Human Rights legislation.

Reason for Decision

To support the Supreme Court's decision to interfere in provincial jurisdiction, Supreme Court of Canada judge, Mr. Justice Frank Iacobucci, wrote a judgement, directly contradicting the opinion of Mr. Justice John McClung of the Alberta Court of Appeal, who had described judicial activism as "judicial carpentry" and, more colourfully, as "judges who choose to privateer in parliamentary sea lanes". Judge Iacobucci claimed that the courts were empowered to review legislative decisions under the Charter because of the decision of the "Canadian people" who, in effect, passed the Charter of Rights. He also claimed that the nation explicitly chose to give judges the role of declaring legislation valid or invalid. Nowhere in the Charter, however, is there any specific provision to allow judges to "read-in" legislation. Rather this is a power that the Court later assumed all on its own. Moreover, Mr. Justice Iacobucci's remarks are misleading because it was the Court, not the "Canadian people", which decided to provide special protection to homosexuals. The court did so by taking the following steps:

1. In 1981 the Parliamentary Committee on the Constitution explicitly decided in a vote of 22 - 2 to exclude the expression "sexual orientation" from the Charter of Rights. This was later endorsed by Parliament when it approved the Charter of Rights without the phrase "sexual orientation".

2. In 1995 in the Supreme Court of Canada in the Egan and Nesbit case held that sexual orientation should be included or "read-in" to the equality section (S.15) of the Charter on the grounds that it was "analogous" to the other protected rights listed in that section (i.e. race, sex, ethnicity, etc.).

This so-called "analogous ground" doctrine is not a part of the Charter. It is a creation of the Court used to increase its own power beyond what was originally intended.

3, In 1998, the Supreme Court of Canada ordered the Alberta legislature to include the term "sexual orientation" in its human rights legislation.

Another important point about this case, which, significantly, has been overlooked by the media, is the fact that the intended purpose of the Charter is to protect individuals from the state or government. On the other hand, the purpose of the provincial human rights legislation is to protect the rights of individuals from violation by another individual. In the Vriend decision, however, the Supreme Court of Canada has grandly concluded that so-called "Charter principles" or Charter interpretations, must also apply to the relationships between private people in provincial legislation.

Perhaps this case was best summed up by Professor Ted Morton of the Political Science Department at the University of Calgary, when he called the Vriend decision (Ottawa Citizen, April 3, 1998) "facile legalism". Professor Morton went on to say:

... the one minority the court is prepared to protect are those favoured by the social left. Why not unborn children, why not smokers and gun owners? There are more restrictions on smokers and gun owners in Alberta than there are on homosexuals. There is a political bias. This minorities game can be played left, right and centre and the court plays it right down the left lane.

2. Rosenberg Case (REAL Women intervention)

In a unanimous decision of the Ontario Court of Appeal, written by hard-line feminist, Madame Justice Rosalie Abella (Madame Justice Hilda McKinlay, now retired, and Mr. Justice Goudge, a Liberal party man recently appointed to the Bench, were the other two judges), the court decided that homosexual partners are entitled to survivor benefits of each other's pension plans. This decision, unfortunately, but not surprisingly, was very thin on logic and reasoning.

In this case, a lesbian sought to register her partner for survivor benefits in a pension plan with the Canadian Union of Public Employees (CUPE). That union had, since 1992, included same-sex spouses in its pension plan coverage. The Income Tax Act, however, under which pension plans must be registered, defines "spouse" as members of the opposite sex. Therefore, the case arose out of the inability to register CUPE's same-sex pension plan.

In order to extend homosexual rights, Madame Justice Abella simply disregarded the 1995 decision of the Supreme Court of Canada in the Egan and Nesbit case, which held that "spouse" refers to members of the opposite sex only. Instead Abella substituted a totally opposite opinion. She stated:

... aging and retirement are not unique to heterosexuals and there is nothing about being heterosexual that warrants the government's preferential attention to the possibility of economic insecurity. It cannot, therefore, be a pressing and substantial objective to single out for exclusive recognition, the income protection of those older Canadians whose sexual preferences are heterosexual.

By this statement, Madame Justice Abella demonstrated that she had completely missed the point of the Egan and Nesbit case. In that case, it was held that as a matter of social policy, special recognition and protections can be given to couples of the opposite sex because of their unique contribution to society -- namely, the giving birth to and the raising of children. In order to encourage this activity which is essential for the future of the nation, Egan and Nesbit posited that legislation which gives heterosexual couples preference is not discriminatory.

This principle is simple enough to understand, but Abella was either unable to grasp it because of her ideological bent, or chose to ignore it. Instead, she wrote:

The government's objective in favouring heterosexual partnership choices permit intolerance of the constitutionally protected rights of gays and lesbians. As such, it is discriminating and cannot be viewed as justification for a constitutional violation.

In effect, limiting pension plant to heterosexual couples is discriminatory because she says it is.

Finally, Abella explained her direct interference of the clearly-written legislation by stating:

... elected governments may wait for changing attitudes in order to preserve public confidence and credibility, both public confidence and institutional credibility argue in favour of courts being free to make independent judgements notwithstanding those same attitudes.

In short, Abella is telling us that she's accountable to no one and, furthermore, doesn't care what the public thinks.

The federal Attorney-General has 60 days to appeal this decision to the Supreme Court of Canada.

Court Challenges Program Involvement in Case

The Court Challenges Program (CCP), which funded the homosexual interventions in the Rosenberg case, was requested, in 1987, by two co-habiting brothers who wished to provide "roll-over" RRSP benefits to each other (a provision available only to spouses) to fund a court challenge on this point.

The CCP Program refused to fund the brothers' case. It thus exposed its willingness to allow possible discriminatory actions against members of the natural family. This indicates that the pro-homosexual CCP isn't concerned about discrimination, per se, but only about what it perceives as discrimination against the homosexual agenda. As we've known all along, equality really has nothing to do with its funding decisions.

BACK TO TABLE OF CONTENTS