Friday, June 25, 2004

If Every Desire Becomes a Right, Then Real Rights are Devalued

The Liberal candidate in Mount Royal, Irwin Cotler (who is also the minister of justice in the Martin government), has chastised Stephen Harper for his stand on same-sex marriage. In his comment, published in the Citizen Wednesday ("The Charter is here to stay." June 16), he throws in everything but the kitchen sink in what is purported to be a defence of the Charter.

Three statements in his tract are quite puzzling. It would appear that Mr. Cotler believes that appellate court judges are infallible, that the majority in the House of Commons is nothing but an expression of whims, and that the notwithstanding clause is not a normal way to assert the prevalent authority of Parliament in a democracy.

The fact that appellate courts in British Columbia, Ontario and Quebec have struck down a piece of legislation is in no way a final judicial stand on any issue. Before we have an opinion from the Supreme Court of Canada, nothing is final. So it is difficult to understand why the Liberal government has not simply referred these judgements to the Supreme Court to determine if the notion of traditional marriage is indeed in violation of the Charter.

To the best of my knowledge, this is what Stephen Harper wants to do: Get an opinion from the Supreme Court about the existing law rather than concocting another law that makes same-sex marriages legal and submitting it to the Supreme Court for pre-approval.

It is well known that a large number of lower court judgements in Canada are not upheld by the Supreme Court. It is not impossible to believe that since marriage is reserved for the partnership between a man and a woman in some 180 countries, the Supreme Court might regard it as quite acceptable and non-discriminatory in a free and democratic society. This need not oppress gays and lesbians in any way, or bar them from entering into civil unions which are not second-rate option except in the mind of the zealots. There could be different way (in full respect and dignity for all) to formalize different sorts of unions.

But even if the Supreme Court were to uphold the decisions of the lower courts, this need not be accepted by Parliament. Irwin Cotler's view that Parliament is a whimsical mob, and its decisions rooted in uninformed whimsicality, is quite surprising. Mr. Cotler, as a human rights lawyer, is so intent on limiting the damages that the tyranny of a majority may inflict on minorities that he lyrically defends the tyranny of the minorities and falls into an idolatry of rights as if they were sacred. As Michael Ignatieff rightly underlines, "we need to stop thinking of human rights as trumps and begin thinking of them as a language that creates a basis for deliberation." Rights are not a set of trump cards to bring political disputes to closure.

Parliament is the place of last resort for deliberation about all governance issues in a democracy. The idea that Parliament is not to be trusted, and that judges as super-bureaucrats are like shamans who cannot be contested, is anti-democratic.

The Charter is a creature of Parliament. Rights have been defined by Parliament; as Mr. Ignatieff says, they are a "tool kit against oppression" and one should not automatically "define anything desirable as a right" because that would erode the legitimacy of core rights. Courts are not infallible in interpreting the Charter. And there is nothing sinister, in a free and democratic society, in Parliament's using the notwithstanding clause to suspend the application of a decision by the courts that does not pertain to oppression and with which the majority of freely elected parliamentarians does not agree.

To allow minority groups to obtain everything they would prefer to have as a matter of rights, and to make rights into a secular religion and the courts into its only authorized clergy, would take us into dangerous territory. And for a minister of the Canadian government to trivialize Parliament as a whimsical mob is not reassuring.

Maybe Mr. Cotler was only speaking as the Liberal candidate in Mount Royal. In such a case, he is allowed to entertain any pragmatic doctrine that is likely to foster his re-election. He even has the right to disinform.

Gilles Paquet©

(Gilles Paquet is a Senior Research Fellow in the School of Political Studies at the University of Ottawa. This column first ran in The Ottawa Citizen , Friday, June 18, 2004, p. A13.)
Reprinted by permission.