There is no doubt that the decision by the Ontario Court of Appeal in June 2003 to support same-sex marriage was pivotal to the final unfortunate outcome of this controversial issue. The courts in other provinces followed Ontario's decision - even to the extent of adopting its wording. The federal Liberal government refused to appeal the Ontario decision. The only "loose end" on the issue was a vote in Parliament. The Liberal government under Prime Minister Paul Martin and many MPs argued that the issue had been settled by the court and that Parliament, therefore, had "no choice" but to follow the ruling. The Liberal government claimed it had to follow the court decisions and, for this reason, refused to allow any amendments to the bill and all 29 NDP MPs and 39 Liberal Cabinet Ministers were forced to vote for the bill, thus depriving their constituents of any meaningful participation in the debate. Debate was further curtailed by the Liberal government by way of imposing closure. In short, legalization of same-sex marriage was far from a democratic process, starting with the appointed judges usurping the role of the legislature on this controversial issue.
It would appear however, that the decision of the controversial Ontario Court of Appeal was based on a grave judicial impropriety on the part of Chief Justice Roy McMurtry. On July 17, 2006, REAL Women of Canada laid a complaint against Chief Justice McMurtry based on the apparent impropriety. We have not had a reply to our complaint
Complaint Against Chief Justice McMurtry
The complaint against Chief Justice McMurtry on same-sex marriage was based on the fact that he had a clear conflict of interest in the case. This is based on a letter written by Mr. Justice McMurtry's son, Jim McMurtry, published in the "Vannet" newspaper chain in BC. In this letter, Mr. Jim McMurtry acknowledged that his sister, the daughter of Chief Justice McMurtry, was living in a homosexual union. The homosexual union of Judge McMurtry's daughter gives rise to an apprehension of bias in that Mr. Justice McMurtry had a personal interest in the same-sex marriage case and its outcome. This was in conflict with his judicial duties and responsibilities and he had a duty to recuse (disqualify) himself from the case. He did not disclose, on the record, the fact of his daughter's homosexual union, which was a fact directly relating to the case.
It is significant that Mr. Justice Rosenblatt, a member of the New York Court of Appeal, which rejected same-sex marriage on July 6, 2006, recused himself from that case because he had a conflict of interest due to having a lesbian daughter. If Chief Justice McMurtry's refusal to remove himself, or place on record the fact of his daughter's same-sex union, is acceptable, then it would appear that Canadian courts follow a lower standard of conduct than other common law courts.
Mr. Justice McMurtry, in his capacity as Chief Justice, was responsible for selecting the judges who heard this crucial appeal with him. This raises an apprehension of bias that the judges Mr. Justice McMurtry selected, contrary to his duty to act responsibly and impartially, were sympathetic to same-sex marriage and his own personal view on the issue of same-sex marriage.
Chief Justice McMurtry Attends Party with Homosexual Litigants
Following the handing down of the decision, Mr. Justice McMurtry, in apparent wanton disregard of judicial convention, ethics and behaviour, attended a public celebration of the same-sex marriage decision on June 26, 2003. At this party which was sponsored by the Law Society of Ontario, Mr. Justice McMurtry was photographed with his arms around the same-sex couple, Kevin Bourassa and Joe Varnell (see photograph) around whom the same-sex marriage case centered. This photograph is available on the internet. In January 2001, this same-sex couple, just two and a half years prior to the Ontario Court of Appeal decision, contrary to the law, had entered into a form of marriage at the Metropolitan Community Church of Toronto (MCCT). Mr. Justice McMurtry's decision included an order that the Registrar General of the province of Ontario register the marriage certificate of Kevin Bourassa and Joe Varnell. This order retroactively legalized and gave legal force to the marriage ceremony, despite the fact that the ceremony had no legal validity at the time it was performed. This action, by the McMurtry court, is conduct that undermines the fundamental obligation of a judge to remain impartial.
Ontario Court Decision Prevents Judicial and Parliamentary Review
A further apprehension of bias arises from the fact that the court ruled that its decision take effect immediately. This reduced and even blocked the possibility of an appeal to the Supreme Court of Canada - an appeal being an integral part of the judicial system. Further, the order that this decision must take effect immediately gravely affected any meaningful debate in Parliament, an institution that is of paramount importance in our system of government. Instead, the court's order circumvented Parliament, by its rendering same-sex marriage a legal reality solely by judicial fiat. This creates a reasoned suspicion of a lack of impartiality on the part of Chief Justice McMurtry and his court.
Magnitude of Costs Awarded Lawyers for Homosexual Litigants
The magnitude of the amounts of the costs awarded by the Ontario Court of Appeal in this case is of interest. Toronto lawyer, Martha McCarthy, who acted on behalf of the litigants challenging the traditional definition of marriage, received $645,000 and Toronto lawyer, Douglas Elliott, who acted on behalf of the Toronto homosexual church, the Metropolitan Community Church of Toronto, received $409,162 (Lawyers Weekly, November 19, 2004). The court, led by Mr. Justice McMurtry, made this latter award to MCCT's legal counsel, notwithstanding the fact that the court had dismissed that church's legal arguments.
Chief Justice McMurtry Ignores Ethical Guidelines
It is clear that Chief Justice Roy McMurtry blatantly ignored the ethical guidelines set out in the document, Ethical Principles for Judges, prepared by the Canadian Judicial Council, by participating in the same-sex marriage decision and celebrating its outcome later with individuals directly involved in the legal challenge. It is the duty of a judge to disqualify himself when there is a conflict of interest between his personal interest or that of his immediate family. This he did not do. The decision to party with the litigators following the decision is also in contravention of judicial convention and conduct.
Complaint Against Chief Justice McMurtry
It may be, however, that our complaint may not be properly considered by the Council since Chief Justice McMurtry is himself a member of the Council, as is Chief Justice Heather Smith of the Ontario Superior Court, who had previously handed down a decision in support of same-sex marriage, in November 2002. She was also present at the Ontario Law Society celebration of homosexual rights in June 2003. These judges are in a position to lobby their fellow jurists on the Council to dismiss the complaint. The Judicial Council is a self-regulated agency that, according to established precedents, appears frequently to have more interest in protecting the judges from the public, than protecting the public from the improper conduct of judges.
Chief Justice McMurtry will be retiring in May 2007 when he reaches 75 years of age. It is also possible that the Judicial Council may want him to retire without a "blemish" - even a well deserved one.
Contrast Between U.S. and Canadian Courts
Homosexual activists in the U.S. viewed with amazement the capitulation of the Canadian courts, which fell like dominoes after the politically correct interpretation that homosexual relationships were equal to or the same as heterosexual relationships. These activists looked to their own courts, therefore, for a swift and easy method of achieving their objective, by way of by-passing the legislatures on the same-sex marriage issue. The US activists already had one success in legalizing same-sex marriage with the Massachusetts Supreme Court, doing so in 2003. Thus, they were confident that the U.S. courts would follow the Canadian courts' example and rule in favour of same-sex marriage.
U.S. homosexual activists launched a series of legal challenges on same-sex marriage through their court system. This strategy, however, turned out to be a major mistake. The U.S. courts have shown themselves to have more depth and integrity, as well as obviously being made of sterner stuff than to yield to the politically correct power brokers, as occurred in Canada on the legal challenges for same-sex marriage.
In July 2006, the New York Court of Appeal and the Washington Superior Court both rejected same-sex marriage- mainly because of their concern for the well being of children. It is significant that the concern for children was the reason that the National Assembly in France in January 2006 rejected same-sex marriage as well. In sharp contrast, Canadian courts never bothered to consider the welfare of children in their decisions to support same-sex marriage. Instead, following the Ontario Court decision, they focused only on the so-called "equality" rights of adults. A tragedy. Furthermore, the Canadian courts cannot state that the issue of the welfare of children was never argued before them, as REAL Women made this issue a prominent part of our presentations when we appeared before the courts on the same-sex marriage legal challenges.
Another significant difference between the US and Canadian courts is that the U.S. courts agreed that it was not for them to say whether same-sex marriage is right or wrong, but rather it was an issue for the elected representatives to decide. If only Canadian judges had such common sense and less ego!
To date, supporters of the traditional marriage definition in the U.S. have won in seven different state courts. Within the last two decades, five U.S. high courts, Massachusetts, Vermont, Hawaii, New York and Washington have ruled on the constitutionality of marital status with only Massachusetts so far legalizing "gay marriage" (in a 4-3 decision). It's an excellent record for traditional marriage.
Chief Justice McMurtry's "Gift" to his Daughter
Chief Justice McMurtry of the Ontario Court of Appeal has given his lesbian daughter a personal "gift" by his decision on same-sex marriage, but he did so at the expense of society and the administration of justice in this country.
It is one thing for the decision on same-sex marriage to take place fairly and honourably, but quite another when the decision is based on the apparent improper and unethical conduct of the judge, who was central to the debate.
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