Madam Speaker, I appreciate the opportunity to speak on this important issue. It is an interesting motion and one that I have thought about for awhile. It highlights a frustration that many people feel with respect to the dialogue between Parliament and the courts. Some might even argue that it has become a monologue. I will focus my remarks on the attempt to change the definition of marriage as something of an example of the perverse consequences of judicial activism.
Everything we do in this place has a charter lens. Sometimes that lens enhances and sometimes that lens distorts. The trump card in the charter is section 15, which looks at discrimination. If a practice, or a law or an institution is discriminatory, whether that discrimination is intentional, then the analysis takes us to section 1 to see if that practice or institution can be justified in a free and democratic society. If it can, then that is it. If it cannot, then the court will strike down a law, practice or institution or say to Parliament “You fix it or we will fix it”.
In theory that sounds fine but in practice it has led to some egregious effects on the use and abuse of courts to find section 15 discrimination. Laws by definition are discriminatory. A law says to this group of people that they are entitled to certain rights and benefits and to another group that they are not. The wheels, however, fall off when the court finds discrimination when in fact there was no intention to discriminate. In fact all it was intended to do was create a difference or a distinction.
I would submit that once the courts make a finding that the institution of marriage is discriminatory, the whole issue, that is one man and one woman to the exclusion of all others, it makes it very difficult to then justify it under the saving section.
When the country was founded, the framers of the Constitution gave marriage and divorce to the federal government to bring uniformity to the institution of marriage. Protestants did not recognize Catholic marriages and Catholics did not recognize Protestant marriages. It was somewhat chaotic and the framers rightly said to themselves “We want some national coherence here, so you, the federal government, look after this area of jurisdiction”, and everything else fell to the provinces.
If the framers of our Constitution knew that the courts were about to open up this constitutional word called marriage and eliminate its gender requirements, I am sure they may well have thought that we had all taken leave of our senses and probably would have retired to the parliamentary restaurant over a few drinks and a couple of laughs. Yet this is the state in which we find ourselves by virtue of charter analysis.
First, a finding of discrimination is made, whether real or in its effect, and then we go to section 1 to see whether we can justify it. However the ball game is virtually lost by then and the arguments become hopelessly ambiguous and vague due to the fact that they are rooted in value systems that are based upon beliefs that are deeply held. It is devilishly difficult to justify when those arguments are so rooted in deeply held beliefs by a number of people.
The problem is that it leaves Parliament with no manoeuvring room. We are stuck with an either-or decision. It is a little like President Bush saying “You are either with us or against us”, and it does not really leave much room for those who say, “We may not be for you but we are certainly not against you”. That is what we are faced with, the so-called judicial activism. It creates almost a false pluralism.
Real pluralism should surely mean that I accept and respect one's right to be different, but so also should that person accept my right to be different and not do that which is against my beliefs. The religious communities are having a collective gag reaction. As decision after decision goes against them, they are forced to accept what I would describe as forced or convergent pluralism, one size fits all: “In the name of pluralism, you must accept what I say and who I am”. It is quite, I would submit, an illiberal pluralism and the courts are wittingly or unwittingly forcing values, convergent on a population that did not elect them and barely knows them.
If, as some anticipate, the court changes the definition, then it is reasonable that some minister, priest, rabbi or imam who refuses to marry two people of the same gender will be sued. That is almost a dead certainty. Witness after witness told us of case after case where equality rights trump religious freedom.
I remember the lawyer for the Catholic Civil Rights League making reference to the Hall case in Ontario. This was the young man who wanted to take his gay date to the prom. The Catholic School Board has a constitutional guarantee to conduct its affairs in accordance with Roman Catholic teachings and doctrines. All students and parents effectively sign on to that concept when they send their children to that school. Therefore it comes as no surprise when a Catholic board or school says, on something such as this issue, that no, they would not permit that. That did not seem to prevent the judge from making an order forcing the board to let the boy take his date to the prom. Equality rights trump religious freedom guarantees embedded in our constitution. Effectively, judge trumps bishop.
Is it any wonder witness after witness looks over their shoulders at the Hall case, or the Brockie case, where a printer was asked to print gay literature, refused and was sued, or the Trinity Western case, where all students signed on for a certain code of sexual conduct and the teacher's board said that it made them ineligible to teach in the schools of British Columbia? Is it any wonder therefore that these folks feel naked and exposed to certain aspects of judicial activism and take no comfort in the bland assurances that the guarantee of religious freedom will offer protection of religious expression?
It would be of some comfort if Parliament could be explicit in its guarantee of freedom of expression but I am afraid that would be an illusion. A robust freedom to dissent act or a human rights code might be of some comfort, as several witnesses suggested, but the courts will rightly say to that kind of idea, “Is the charter not enough?” Those in the religious community who are constantly paraded before the human rights boards and courts do not think the fig leaf of a charter provides them with any protection at all. It is almost a case of words are not enough.
The other thing that makes one wonder about this issue is Parliament itself. In 1999 we passed an overwhelming resolution after a day of very animated debate re-affirming the traditional definition of marriage. The preamble of Bill C-23, re-affirmed the traditional definition of marriage and brought it from a common law interpretation into an actual statutory bill. That has scarcely slowed down judicial trains heading toward a clash with Parliament, one which Parliament cannot win.
Twice in the last few years Parliament has spoken forcefully and unequivocally. Yet our system is such that the courts hold the ultimate trump card, which brings me back to my original point. It is extremely difficult to fashion a public policy which takes into account divergent interests and views when the legal environment is such that “you do it our way or we will do it for you”.
How does one fashion a response in the face of such a threat? I, and quite a number of others, believe we would be quite willing to address the genuine equity issues that rise before us, those broader issue, but the courts have effectively put us in a zero-sum game: “you win; you lose”. Unfortunately, the effect of which is that we all lose.