A rchive Date
[ 25-06-2003 ]
Category
[ International Relations ]
sub-Categoy
[ Canada ]
|
[http://www.canoe.ca/Columnists/mansur_london.html
Federal Liberals abdicating duty to serve public
SALIM MANSUR, For the London Free Press
2003-06-25
The recent Ontario Court of Appeal decision in favour of those who made a constitutional challenge to the existing definition of marriage was based substantively on the finding that it violated the equality provisions of the Charter of Rights and Freedoms of Canada.
The panel, composed of Chief Justice Roy McMurtry and Justices MacPherson and Gillese, wrote: "The question at the heart of this appeal is whether excluding same-sex couples from another of the most basic elements of civic life - marriage - infringes human dignity and violates the Canadian Constitution."
Section 15 (1) of the charter guarantees every Canadian be treated "equally before and under the law," and enjoy "equal protection and equal benefit of the law," suffering no "discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."
The definition of marriage, as the justices pointed out, in the nation's 136-year history was provided in 1866 in the classic formulation of Lord Penzance. He wrote in a legal ruling that marriage, "as understood in Christendom," might "be defined as the voluntary union for life of one man and one woman, to the exclusion of all others."
Nothing in the intervening years had changed to alter that definition. This definition, for purposes of the courts, succinctly captured the meaning of marriage and its institution, while implicitly acknowledging a common law tradition of much antiquity sanctified by all religions.
But in this age of the charter, the appeal court found this venerable common law institution of marriage, the foundational basis of our family, home and society, must be altered to fit the Canadian Constitution as understood by the courts. The court's decision was almost contemptuous in ruling the definition of marriage that shaped and nurtured our civilization was invalid.
The remedy required, the justices ruled, was to immediately revise the definition of marriage consistent with the equality provisions of the charter. The reformulated definition of marriage is to be "the voluntary union for life of two persons to the exclusion of all others." The justices wrote: "This remedy achieves the equality required by . . . the charter but ensures that the legal status of marriage is not left in a state of uncertainty."
The primary responsibility of superior courts is to see that laws of the land are consistent with constitutional requirements.
But when judges begin to prescribe remedy, and legislators - as the people's representatives - readily accede to the authority of judges in those areas of laws that belong to the people, then injury is done to the necessary balance between judiciary and legislature. Nature and politics both abhor a vacuum.
We have, as a result of the Parliament incrementally abdicating its responsibility to preserve peoples' prerogatives in law-making, judicial activism reshaping the political landscape of Canada.
It is in the behaviour of the Liberal government - folding pathetically before the courts' rulings - that we have the people's prerogatives as represented by the Parliament being denuded and abandoned.
In France, a country well known for its radical republicanism, similar demands for same-sex marriage were met by the previous Socialist government differently than the laws in Belgium and the Netherlands.
The French parliament opted for the Civil Pact of Solidarity, providing both homosexuals and heterosexuals full legitimacy and guarantees of the institution of marriage under the authority of the state. In this formulation, the traditional meaning of marriage invested by the authority of religions remains unaltered.
It cannot be said that Canadians forfeited their capacity to think imaginatively - except perhaps for the ruling Liberals - and find legal means to maintain the sanctity of a valued common law tradition while respecting the charter provisions.
Salim Mansur is a professor of political science at the University of Western Ontario. His column appears alternate Wednesdays Copyright © The London Free Press 2001,2002,2003
 World Fact Book (CIA)]
|