Speeches by Judge Create Controversy

Something appears to be very wrong with Supreme Court of Canada Judge Madam Justice Claire L'Heureux-Dubé. She is either completely arrogant because of her unassailable power as a Supreme Court judge, for which she is accountable to no one, and doesn't care what she says or does publicly, or, alternatively, she is confused - even disturbed - and unaware of the implications of what she is doing.

Just twenty years ago, the Canadian Judicial Council was reprimanding judges for speaking out on political issues. However, in Madame Justice L'Heureux Dubé is doing cartwheels across the political issues, according to her own personal whims and prejudices.

In a series of four remarkable speeches, given in 1999, Madam Justice Claire L'Heureux-Dubé has made some deeply disturbing statements which call into question her suitability as a judge.

In the first place, judges are sworn to impartially uphold the law. The court's claim to legitimacy is its ability to decide cases, not on prejudice or ideology, but by the application of reason based on principles validated by continuous testing as new situations arise.

In this regard, judges have a sworn duty to listen to the competing arguments presented to them and remain aloof from the swirling sands of political debate. Judges are required to soberly interpret the law, never pre-judging any case. None of this, however, appears to apply to Madam Justice Claire L'Heureux-Dubé. Instead, according to her 1999 speeches, she has openly declared her "enlightened" (she believes) views, and loudly proclaims them from her lofty perch on the Supreme Court of Canada. From this bench, she is pre-judging cases with abandon. The following excerpts from her 1999 speeches give some indication of her odd behaviour:

Winnipeg, Manitoba - March 26, 1999
Speech to the UN Platform for Action (Manitoba)
Human Rights Tribunal

Madam Justice Claire L'Heureux-Dubé stated:

… the constitutional equality provision of the convention [UN Convention on the Elimination of all Forms of Discrimination Against Women] only achieves effectiveness once life is breathed into them by the courts or tribunals and they are applied to real-life situations. (emphasis ours)

Pardon us, but it is the legislatures, not the courts that are supposed to "breathe life" into treaties and conventions.

Judge L'Heureux-Dubé, herself, admitted this in her own judgement, handed down last July in the Baker case, when she stated, in regard to the application of the UN Convention on the Rights of the Child, that:

International treaties and conventions are not part of Canadian law unless they have been implemented by statute: … I agree with the respondent and the Court of Appeal that the Convention has not been implemented by Parliament. Its provisions therefore have no direct application within Canadian law. (emphasis ours) (See Reality, "Passport Babies Here to Stay," July/August, 1999, p. 5.)

Confusion? Contradiction? Apparently so.

Further, in the same speech, in regard to sexual assault, Madam Justice L'Heureux-Dubé stated:

Speaking the language of human rights, on this issue especially, requires constant attention to the needs, realities, and perspectives of women in particular. (emphasis ours)

"Women"? What women? Women do not share a single voice on the issue of sexual assault or any other issue. Clearly M. L'Heureux-Dubé is referring to the view of her feminist sisters only.

In the same speech, L'Heureux Dubé endorsed the feminist concept of "repressed memory syndrome," - a theory soundly discredited by psychological and psychiatric authorities. She stated that the application of therapy, which releases suppressed memories, "contribute(s) to ending inequality within the family… [by] examining and understanding women's (sic) lives."

July 1, 1999 - Speech to the
Conference of Same-Sex Partnerships - London, England

Madam Justice Claire L'Heureux-Dubé stated in regard to the controversial Supreme Court of Canada decision in the Vriend case in which Alberta was ordered by that court to include protection for homosexuals in its human rights legislation :

We the Supreme Court of Canada] noted that the democratic process had not adequately taken into account the needs of gays and lesbians or recognized their status and disadvantages as a vulnerable minority in Alberta society. The judgement in M v. H closely built upon this victory. (emphasis ours)

Changes in the legal realm, however, have been accompanied by a general failure of the political process to recognize the rights of lesbians and gays without the pressure of court decisions behind them.

… courts are taking the lead in changing society's attitudes to same-sex partnerships …

Despite these developments, however, there is much work to be done. Definitions of spouse in many federal laws that exclude same-sex partners are still present in many laws in many provinces, and discrimination and prejudice against gays and lesbians in Canadian society is still too prevalent. The day has not yet come when all laws in Canada recognize same-sex partnerships as equally worthy and valuable as those members of the opposite sex. Amending the many legislative distinctions between same-sex and opposite-sex couples will require extensive legislative amendments to a variety of statutes, or many court challenges to individual statutes. (emphasis ours)

We have come a long way in a short period of time. Where must we go, and how can we get there?

From her remarks, it is evident that Judge L'Heureux Dubé believes democracy is a waste of time. In her off-the-cuff remarks after her speech, she said judges "have lots of discretion. I am not afraid to strike laws down. You can call it partiality. I call it human." This comment was met with thunderous applause from the homosexual audience.

August 21, 1999 - Speech to the Canadian Bar Association

Madam Justice L'Heureux-Dubé spent most of this speech defending judicial activism, arguing that it is merely the exercise of "judicial independence." She commented:

… attacks on judicial institutions and upon individual judges are becoming more and more frequent and the vocabulary bears less and less the signs of civility …

She blames this phenomenon, of course, on a lack of understanding by the ignorant public and media of the judicial role - never on her own role in this developing controversy. Judge L'Heureux-Dubé further stated:

The activist judge is also often portayed 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. It is also often suggested that activist judges place their personal preferences above the requirements of the law.

Editor's Note: (See her speech in London on July 1, 1999 (above) and her speech of October, 1999 (below.)

To support her arguments in favour of judicial activism, Madam Justice Claire L'Heureux-Dubé then quoted with approval none other than a well-known Australian homosexual judge, Justice Michael Kirby (also a speaker at the University of London Conference on Same-Sex Partnerships on July 1, 1999).

October 21-23, 1999 - Speech at Queen's University Conference on Domestic Partnerships

In this speech, Madam Justice Claire L'Heureux-Dubé objected to Statistics Canada's definition of the "family" which includes only married couples or common-law spouses of the opposite sex, or lone parents. She stated:

… the figure does not include a number of Canadians who live as same-sex couples or who live with a relative other than a spouse, parent or never-married child.

The law's failure to fully recognize non-traditional partnerships is of particular concern.

She continued:

In failing to recognize and support partnerships, traditional or otherwise, are we not doing violence to the very fabric of our community? Compared to traditional couples, non-traditional partners are no less deserving of emotional and community support as they cope with old age, the dissolution of a relationship or the death of a partner. In fact, denying them this support, are we not doing a disservice to ourselves, to important members or our community, as well as to society as a whole?

It is shortsighted for even those of us who are advantaged to assume that it is in our interest to preserve the systems and institutions that perpetuate our advantage at the expense of the relative disadvantage of others.

When individuals or governments refuse to recognize or respect differences, the cost is the fostering of intolerance in our society, which ultimately imposes costs on us all.

Madam L'Heureux-Dubé then quoted, with approval, the lawyer for one of the lesbian partners in the controversial Supreme Court decision in M and H:

… there are important consequences to ostracizing gay, lesbian and other non-traditional partnerships. We have acknowledged a series of rights without touching the values that lie at the very heart of the question: freedom, equality, respect and dignity.

Until we understand that true equality encompasses all of these values, and until we apply this understanding, inequalities will continue to rage rampant.

This position, of course, is in direct contradiction to the 1995 Supreme Court of Canada decision in Nesbitt and Egan which held that it was not discriminatory to provide special recognition and benefits to the traditional opposite-sex family because of its unique role in society of giving birth to and raising the next generation.

Lack of Impartiality

In an article by Professor Ted Morton, Professor of Political Science, University of Calgary, published on December 8, 1999, in the National Post, under the heading "Absence of Balance," Professor Morton stated, in connection with Judge L'Heureux-Dubé's four astounding speeches in 1999:

Judge L'Heureux-Dubé has gone far beyond the permissible limits laid down …. She has staked out personal positions on issues that are under active political debate and will certainly be subject to additional litigation.
As a Canadian citizen, Claire L'Heureux-Dubé is free to join the gay rights movement. But not as a sitting Canadian judge.

Judge L'Heureux Dubé has disgraced herself by her freewheeling imposing of her own agenda on Canada. More importantly, she has disgraced the Supreme Court of Canada, of which she is a member. How can we now have confidence in this court?

How much longer can we tolerate this biased woman sitting on the Supreme Court of Canada?

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