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PROJECT JUSTICE
Changing Canada's Flawed Political and Judicial Systems
A conflict is shaping up in Canada between
its two most powerful institutions, Parliament and the courts.
This battle will be the definitive struggle for ultimate control
over public policy in Canada. The issue about which the battle
is to be fought is the legal definition of marriage.
1. Parliament
It may be that the House of Commons Justice
Committee reviewing marriage, which will submit its report
in June, will support the traditional definition of marriage
as the union between a man and a woman. This definition
has been accepted and acknowledged, throughout time, by
all major religions and cultures of the world. After receiving
the report, Minister of Justice Martin Cauchon must then
determine how to proceed with this crucial issue in the
House of Commons.
However, it is a major concern that the
Liberal leadership candidates, John Manley and Sheila Copps,
both publicly support the notion that same-sex unions should
be recognized as legal marriage. Front-runner Liberal leader
candidate Paul Martin has expressed uncertainty on the issue
of same-sex unions being recognized as marriages - but most
tellingly, he stated (Globe and Mail, April 29, 2003):
… if the court makes it clear
that the marriage issue is a matter of fundamental rights,
… I will comply rather than invoke the notwithstanding
clause in the Charter of Rights and Freedoms.
I believe fundamentally that governments
cannot discriminate on a question of rights.
National Liberal Caucus Research Bureau
By a remarkable coincidence, just four days
after the BC Court of Appeal handed down its decision on
May 1, 2003, in support of same-sex unions to be recognized
as legal marriages, the National Liberal Caucus Research
Bureau distributed a document to the Liberal members of
the Justice Committee advising them that the federal government
had "little legal choice" in light of the court
rulings to adopt same-sex marriages into law. The bias of
this document was obvious when it stated that, "The
recognition in law of same-sex marriage is about fair play,
equality, inclusiveness, and justice, values that are consistent
with our government's commitments." This conclusion
is wide open to debate. The sole purpose of this document,
obviously, was to convince the Liberal MPs on the Justice
Committee reviewing the definition of marriage, to meekly
acquiesce to the court's rulings.
The Public Must Become Involved
Canadians have shown that when aroused,
they mean business and will not be ignored. This resolve
was indicated this past year over Svend Robinson's Bill
C-250, which, if passed into law, will infringe the Charter
of Rights' basic freedoms of religion and expression.
Thousands upon thousands of letters poured
into the House of Commons, leaving no doubt that Canadians
wanted this damaging bill withdrawn. Similarly, Canadians
from one end of the country to the other, have either written
to or appeared before the House of Commons Justice Committee
in support of the traditional definition of marriage, leaving
the Committee in no doubt as to their responsibility to
protect the present legal definition of marriage in Canada.
All this shows that the Canadian public
is a formidable fighting force, once it makes up its
mind that the issue is important enough to become engaged.
Certainly, the definition of marriage is one such issue.
It is crucial that Canadians participate in this great battle
over the definition of marriage, the foundation of society
as this decision will profoundly affect the destiny of our
nation.
Unfortunately, our MPs are apathetic and
submissive, accepting the decisions of the courts on public
policy matters. This attitude was expressed publicly by
Paul Martin in his willingness to abide by the court's decision
on the marriage issue. Such an abdication of responsibility
by Parliamentarians must cease because it is unhealthy for
democracy. We must insist that Parliament assume responsibility
for public policy decisions, rather than allow the handful
of unaccountable lawyers appointed to the courts to assume
this responsibility for them.
2. The Courts
The courts appear to have reached the conclusion
that homosexuals are a minority group requiring their special
protection. In defiance of common sense, logic, reason,
the law, or even the grave implications to the fabric of
society, the courts have granted homosexuals all that they
have requested in their numerous court challenges.
Supreme Court's Manoeuvering on Homosexual
Issues
The Supreme Court of Canada has positioned
itself to make the decisions on homosexual demands by its
1995 decision Nesbit and Egan. In that decision,
the Court "wrote in" sexual orientation in the
equality section (S.15) of the Charter, since that section
of the Charter did not include this provision, because,
in a 22 to 2 vote, the Parliamentary Committee studying
the Constitution in 1981, voted against its inclusion. The
Court also concluded that an individual's equality rights
under S.15 were threatened if that individual's "human
dignity" was undermined. (Law v Canada (1999)).
"Human dignity," was interpreted by the Supreme
Court in the Law case, as existing only if an individual
or group feels that self-respect and self worth are present.
That is, according to the Supreme Court of Canada, an individual's
or group's human dignity can be undermined if they feel
marginalized, ignored and devalued. This means that equality
rights under S.15 of the Charter now rest on the claims
of a person's feelings. This is an extraordinary criterion
for courts to use in order to determine "equality"
rights under the Charter. This broad interpretation of equality
provides a wide opportunity for the courts to protect their
favourite groups, regardless of the intent of Parliament,
the plain wording of the legislation, or the views of the
public.
No Evidence of Discrimination
In this regard, it is significant that in
the courts' many decisions on the equality right of homosexuals,
evidence of such discrimination has never been introduced
or argued before the courts. Rather, the courts have based
their decisions on homosexuals' equality rights, solely
on the assertion of such discrimination by the homosexuals
themselves. That is, evidence, such as credible data, has
never been introduced to support their claim of discrimination.
Instead, the Canadian courts have accepted, as a fact, that
homosexuals experience disadvantages because of supposed
stereotyping and prejudice. This unthinking presumption
by the courts is an indication of their lack of impartiality
on the homosexual issue.
Moreover, this interpretation of "equality"
by the courts, unfortunately, does not mean "equality"
as reasonably understood, but instead has come to mean an
entitlement given to favoured groups by the court.
It was this interpretation of "equality"
that gave the Ontario Divisional Court in 2002, the opportunity
to declare that same-sex unions be recognized as legal marriages.
How else can one explain Mr. Justice Robert Blair in the
Ontario marriage case concluding that "child bearing
and companionship" are the sole defining characteristics
of marriage, or the conclusion of Mr. Justice Harry LaForme
in that same decision, that the sole purpose of marriage
is to provide a "social stamp of approval and acceptance
for an adult relationship?" With these simplistic conclusions,
the court had no difficulty in deciding that homosexuals'
"human dignity" and "feelings" of self
worth were undermined by their inability to enter into legal
marriages, and were, therefore, unable to achieve a "social
stamp of approval" for their relationships. Such a
conclusion, however, ignores the intensive historical, sociological
and anthropological evidence establishing the nature and
purpose of marriage - the very foundation of society, the
heterosexual nature of which transcends cultures, religions
and time.
The decision on the definition of marriage
touches on social, political, cultural, emotional and legal
implications that are extremely complex. Their resolution,
was acknowledged even by Mr. Justice Blair of the Ontario
Divisional Court, when discussing the possible remedies
available to address the problem, who admitted at para.
97, that his proposed transformation of the concept of marriage:
… [will] require a response to
a myriad of consequential issues relating to such things
as inheritance and property rights, filiation, alternative
biogenetic and artificial birth technologies, adoption,
and other marriage-status driven matters. The Courts are
not the best equipped to conduct such a balancing exercise.
Yet, he ignored his own assessment of the
problem, and concluded that the definition of marriage should
include same-sex unions, notwithstanding the obvious ramifications
of his decision.
It is always possible that some of these
judges lack the intellectual capacity to understand the
significance of the issue before them, and, instead, obligingly
leap into the opening provided them by the Supreme Court
of Canada in its interpretation of "equality,"
in order to reach their politically correct conclusion that
homosexual relationships are marginalized by their exclusion
from the definition of legal marriage.
It is bizarre, however, that the destiny
of our nation is held captive by the inadequacy of these
judicial manoeuverings.
Another problem in regard to the court's
reliance on its own subjective perception of "human
dignity" as the core value in equality cases is that
the Supreme Court of Canada has extended this interpretation
to mean, according to the Surrey School Board case
(December 2002) that "tolerance" of differences
now requires acceptance of these differences, despite
one's own beliefs. That is, the Supreme Court of Canada
now requires that Canadians accept homosexual differences,
regardless of their own beliefs, since to do otherwise,
will cause harm by hurting the feelings of homosexuals.
The Supreme Court's determination that equality
rights under S.15 of the Charter are based on the human
dignity or the feelings of the participants, and
the court's requirement that everyone accept these
differences in relationships (not merely acknowledge the
differences), is an illogical, non-legal, non-judicial absurdity.
It is stifling dissent in regard to the homosexual agenda,
and is creating a special intolerance all its own.
Absence of Controls on the Courts
How did the courts establish such non-legal
criteria, on which they have no expertise to determine and
distort their own faculties of reason in such a manner that
they provide these entitlements to homosexuals?
This extraordinary situation has developed
because there are absolutely no checks and balances on our
courts, which rightly reason that they can do whatever they
please, no matter how spurious their reasoning.
In no other country in the western world
have the courts been given such powers as those now enjoyed
by our courts. In fact, The Supreme Court of Canada is the
most powerful court in the western world - headed by judges
whose appointments have never been scrutinized or screened.
The truth is that judges do not have special
or secret knowledge with which to interpret the general
and ill?defined words in the Charter of Rights. Instead,
judges come to the bench with their own political and ideological
axes to grind and, in the present situation, make their
decisions accordingly.
It is arrogant of judges to assume they
know what is best for us. This assumption also ignores the
reality that the very basis of their appointments is political.
Judges are not above the political passions of the day,
but are a part of them. Judges are well-connected lawyers,
who have the political clout to secure their appointments
to the bench. Canadians should not be held hostage to the
presumptions of these few unaccountable, appointed lawyers
who have no distinctive recommendation, other than these
political ties.
Courts Not Set Up to Determine Public
Policy
Moreover, the courts should not determine
public policy in Canada because they are not set up to carry
out this important function. Courts do not have access to
the social facts of the issues before them as does Parliament;
they do not have the luxury of time to adequately reflect
on the issue; they do not have access to research facilities
available to Parliamentarians; and they do not have access
to the practical experiences of the public on issues which
are growing increasingly complex, economically, socially
and scientifically. Nor are the courts equipped to evaluate
the full range of policy alternatives available to the government.
As a consequence, it is not possible for the courts to entirely
grasp the long-range implications and ramifications of the
arguments placed before them by the litigants.
The courts also proceed only on the basis
of the arguments placed before them. For example, on social
issues, the court hears most frequently from special interest
feminist/homosexual groups, which are funded by the federal
Court Challenges Program. Added to this are the arguments
of the Attorney General which frequently provide an unenthusiastic
support for the law because the Attorney General's arguments
are based often on political concerns, according to the
dictates of the Attorney General's political party, rather
than on legal concerns. Only occasionally do individual,
independent, self-supporting organizations muster the necessary
funds to intervene in these court cases and oppose this
limited debate.
Canadian Courts Have Become Centres
of Radicalism
Unlike any other country in the world, the
unchecked power of Canadian courts has led them to become
hotbeds of radicalism. For example, courts in other countries
have rejected same-sex marriages. The New Zealand Court
of Appeal in Quilter et al. vs. the Attorney General
(New Zealand) (1998) held that marriage was the union of
a man and a woman only. This latter conclusion, by the way,
was upheld by the UN Human Rights Committee in Geneva in
2002, on the basis that the International Covenant on Civil
and Political Rights (which Canada has ratified) only recognizes
unions between a man and a woman as marriages.
In fact, nowhere else in the world,
with the exception of the Netherlands and Belgium, has marriage
been changed to include a union of two persons of the same
sex. Yet Canadian judges, using their appointed, unaccountable
positions, are ready to make this momentous decision on
our behalf.
Courts in Support of Same-sex Marriages
The unfortunate reality we must face is
that the three provincial Courts of Appeal (BC, Ontario
and Quebec), where court challenges by homosexual activists
on the legal definition of marriage have been launched,
will support same-sex marriages. In the first appeal decision
handed down on May 1, the BC Court relied heavily on the
interpretation and analysis of the Ontario Divisional Court
in reaching the conclusion that marriage should include
same-sex unions.
The Supreme Court of Canada has flexed its
political muscles several times on the homosexual issue
and will undoubtedly pronounce that same-sex marriages are
necessitated by reason of the Court's absurd interpretation
of "equality" under the Charter. This decision
is to take place in late 2004 once the appeals of the three
provincial marriage cases have come before the Court.
Deluge of Pro-homosexual Cases
Canadians thus will soon be inundated with
a series of court decisions based on the questionable, highly
subjective "equality" interpretations of the "human
dignity," i.e., hurt feelings of homosexuals/lesbians
The courts will decide that legal marriage must include
same-sex unions. Nowhere else in the world have courts had
the effrontery and arrogance to make such a revolutionary
decision on behalf of the public and especially on such
specious, irrational grounds as the "human dignity"
(feelings) of homosexuals.
Something must be done to change this unacceptable
situation. The court's ambitious assuming of power to determine
public policy must end - without delay. Something must be
done, now to curb the power of the courts. We cannot
wait for the changes to the appointment system of judges
which are to take place under a new Prime Minister. We must
undertake a pre-emptive strike against the courts
before the marriage cases are completed with all
the media fanfare and preening of the homosexual activists
who will "explain" to us that same-sex "marriage"
is inevitable.
WE MUST LAUNCH IMMEDIATELY, A TWO-PRONGED
ATTACK ON THE DEEPLY FLAWED JUDICIAL AND LEGAL SYSTEMS IN
CANADA WHICH SO GRAVELY UNDERMINE DEMOCRACY.
A. Changing Canada's Flawed Judicial System
Historically, the courts have been at arms
length from the public, supposedly standing above the roar
and rattle of the general public and the politics of the
day.
Today, this is no longer the situation.
The courts in Canada have unelected politicians delving
into the public policy arena without the slightest deference
to Parliament. The courts will not show any restraint
until they are forced to do so by the public's reactions
against them.
Since the courts have taken on policy decisions
as politicians, the time has come for them to be treated
as politicians.
Judges must be made aware that their position
as judges is no longer protected by the myths surrounding
their supposed impartiality. Those days are over. The public
must place a check on the presumptions of the judges that
they are all-powerful and above criticism. They are not.
Restraining the Judges
In order for the courts to realize that
their days of protection from the public's reaction are
over, it will be necessary for individuals to write to the
Chief Justices of each of the provincial Courts of Appeal
(BC, Ontario and Quebec) and the Supreme Court of Canada.
These letters must advise them that the courts' participation
in public policy areas is not acceptable. Judges must be
advised that the court's proper role is to interpret
the law according to the intent of Parliament, not
to make up public policy in accordance with their personal
philosophical and ideological beliefs.
You should be forewarned, however, that
in response to your letter, you will receive a brief letter
from the Registrars of the Courts advising you that judges
cannot directly reply and the judge's role is not to be
involved with the public on the issues before them. In making
this response, the Registrars are merely protecting the
judges, attempting to continue the myth that judges act
for the public good and are above the political process.
Regard the Registrar's response as meaningless in today's
world of judicial supremacy. Judges cannot have it both
ways - on the one hand, making public policy decisions,
and on the other hand, expecting to remain immune from public
criticism because of their exalted position.
Please write also to the newspapers expressing your concerns
about the courts' assumption of power to determine public
policy matters.
The names and addresses of the Chief Justices
are as follows:
The Rt. Hon. Beverley McLachlin
Chief Justice
Supreme Court of Canada
301 Wellington Street
Ottawa, Ontario K1A 0J1
The Hon. Lance S.G. Finch
Chief Justice
Court of Appeal for British Columbia
The Law Courts
800 Smithe Street
Vancouver, BC V6Z 2E1
The Hon. R. Roy McMurtry
Chief Justice
Court of Appeal for Ontario
Osgoode Hall
130 Queen Street West
Toronto, Ontario M5H 1E3
The Hon. R.R. Michel Robert
Chief Justice
Court of Appeal for Québec
1, Notre-Dame Street East
Suite 17.12
Montréal, Quebec H2Y 1B6
B. Changing Canada's Flawed Political System
In order for democracy to be restored to
Canada, Parliament must break from its apathy and resume
control over our public policy issues. Our elected members
of Parliament must no longer be permitted to submissively
accept the decisions of the courts on the pretense that
they are "bound" to follow these egregious decisions.
Many elected officials, such as Minister of Justice Martin
Cauchon prefer to take this submissive approach to the courts,
since it reflects his own views and those of the other Liberal
elites. In fact, the courts are now a part of the Liberal
party's orthodoxy in that the courts share and reinforce
the Liberal government's beliefs and policies. In short,
the Canadian courts are upholding federal policies,
rather than placing any restraint on them.
At the present time, MPs and Cabinet Ministers
believe they will not pay a political penalty for passing
legislation dictated by the courts, and, therefore, willingly
allow the courts to pre-empt their role. The Prime Minister,
the Minister of Justice and individual MPs must know that
they will pay a penalty for their failure to take
responsibility for public policy - and especially so on
an issue so fundamental to society as the definition of
marriage.
Parliament's Duty
It is the duty of Parliament to uphold the
public interest, and it is not in the public interest to
permit same-sex marriages as a response to pressure from
a special interest group. If the courts choose to grant
marriage rights to homosexual partners based on their convoluted
non-judicial, subjective approach to determining equality
issues, the Canadian public must no longer support them.
Citizens must insist that Parliamentary democracy
be restored to Canada by requiring Parliament to act pre-emptively
on the marriage issue, and pass legislation stating that
marriage is exclusively a union between a man and a woman
only.
The only way this will be accomplished
is by public pressure. It's up to us to provide this
all important pressure. We must now insist that Parliament
oppose the will of the unaccountable courts, by asserting
its own will on behalf of the public.
Conclusion
It is fully realized that what is being recommended
is to undertake a revolutionary approach to the difficulties
presented by the courts and Parliament today. The matter is
so grave, the ramifications to society so overwhelming, that
we are obliged to undertake this new approach to correct the
problem within our present dysfunctional legal and political
system. This initiative is Project Justice. It is also,
Project Democracy. The time is now to begin this unique
journey to restore democracy to our country. We cannot delay.
There is too much at stake.
Please write to the following:
The Right Hon. Jean Chrétien, PC,
MP
Office of the Prime Minister
Langevin Building
80 Wellington Street
Ottawa, Ontario K1A 0A2
Hon. Martin Cauchon, PC, MP
Minister of Justice
East Memorial Building, 4th Floor
284 Wellington Street
Ottawa, Ontario K1A 0H8
Your MP
House of Commons
Ottawa, Ontario K1A 0A6
Please demand that Parliament, not
the courts, define marriage in Canada. Insist that
Parliament, which represents the public, assume its proper
role in determining public policy.
This article is available electronically by
e-mailing a request to realwcto@interlog.com
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