Wednesday, February 02, 2005

Charter Section 33 and the Law Professors

For those who are not aware of it, a rather interesting exchange occurred this past week in the pages of that opinion leading journal of the hermetically sealed echo chamber of Canadian journalism (the words are Conrad Black’s) - - the Globe and Mail.

It took the form of a letter signed by about a hundred law professors (they go around in large schools called Universities) telling Stephen Harper that his approach to the marriage issue was wrong - - dangerously wrong.

Their beef (for none of them are really vegetarians) was that Mr. Harper’s plan to go ahead and actually pass a law saying that marriage should be between a man and a woman (and only one of each) was unconstitutional unless he used Section 33 along with it! They said he was playing politics with the Court if he forced a barefaced heterosexual marriage law back to them for determination without that Section 33 declaration. Just what was all this about? A bit of history might be helpful to unravel this.

The Supreme Court of Canada, it will be recalled, refused to answer the fourth question in the Marriage Reference. That was the question about whether a heterosexual definition of marriage could be constitutional. This question was added to the Marriage Reference by Prime Minister Martin after he and his new Justice Minister, Irwin Cotler, took over the controls when the outgoing Prime Minister and his Minister of Justice had vacated them.

The outgoing Prime Minister was content not to ask whether heterosexual marriage could be constitutional and sought the Court’s opinion on a narrower range of questions. Basically the other three questions boiled down to one question on marriage itself: is same-sex marriage constitutionally valid?

By not asking any other questions, the original “Reference” basically sought to get the Court to give its good judge-keeping seal of approval to same-sex marriage. It was all very cute and well packaged. Too cute by half.

So, in a show of actually seeking judicial analysis, Martin/Cotler added a question. The proverbs then hit the fan. “How dare they?” shouted the activists and their lawyers and their several hundred law professor supporters. “How dare they ask about heterosexual marriage when WE know that such a concept makes dodos look lively?”

In any case, the question went ahead.

The Supreme Court, meanwhile, decided that it did not want to answer this question. Why not? Ah, there you have it.

They decided they did not want to answer the question because the Federal Government had said that it planned to go ahead and introduce same-sex marriage legislation “regardless of what the Court said anyway”.

Sorry? Wasn’t the Federal Government asking the Court the question about whether heterosexual marriage was constitutionally valid? You bet they were.

So, if they (the Feds) knew they were not going to pay attention to what the Court said about heterosexual marriage, why did they even ask the question? Here one needs to consult an Ouija board for proper and full analysis. Failing that, perhaps there is a more obvious answer. Optics. They wanted it to appear as if they cared about what the Court said about heterosexual marriage without actually caring.

Well, now we get to the nub of the matter. The Supreme Court decided that it did not want to answer that fourth question and, for whatever reason, did not do so.

So. The Supreme Court of Canada, though asked to give its opinion on whether a heterosexual marriage only definition of marriage could be constitutional did not give its opinion.

Now there are two kinds of politicians: those who have ideas and want to stand by them and those who have ideas and want to do everything possible not to be seen to have them. This second kind of politician, sadly, outnumbers the other kind several times to one.

The Federal government bravely refused to appeal lower court decisions in British Columbia and Ontario that had determined that the common law recognition of marriage as between one man and one woman (and one only) were unconstitutional. When one says “bravely” here one says it with heavy irony. For it exhibited bravery like cowardice, like common sense resembles stupidity or like responsible government resembles loony anarchy.

In short, the Federal Department of Justice and the Federal government have been playing games with the Canadian people to ensure the bringing about of same-sex marriage no matter what. But soft: they had to do it while appearing to be responsible governors. Hence the dropping of appeals, the stating of “cooked” and inadequate questions, the posing of questions while at the same time stating that the answers to the questions were irrelevant and so on.

One needs a 3D map to follow the duplicity of the current regime.

This brings us to the law professors’ letter in the Globe and Mail.

These law Professors are no fans of the notwithstanding clause. They are huge fans of the court and its new role of social planner. Their motto is this: “Every day in every way Canada is getting fairer and fairer and it is the role of the Court to make it happen.” That is the mantra of what Professor Morton and Professor Knopff call “The Court Party”.

They view, after all, the Court as an unelected but dominant “party” that can, in fact, rule the roost. Section 33, which allows a determination of Parliament to stand “notwithstanding” a ruling of the Court, is a major worry to the Court Party because it makes Court decisions susceptible to, horrors, the demos! Those dirty uneducated, bigoted and foul people we are surrounded by……they, THEY, have the capacity to thwart the Great Move Forward, the march towards peace order and good government represented not by government but by what the Court decides and the elite supports.

Into all this, Stephen Harper comes along with the suggestion, like that of the small boy who once commented upon an Emperor’s nakedness and says “the Court has not ruled on heterosexual marriage”. Silence.

It is true. But in their wildest dreams the Court and the Government and the Law Profs, did not think that anyone would DARE to go ahead with heterosexual marriage without declaring a Section 33 over-ride. Let me explain.

The Court Party dislikes Section 33 because it gives the hated masses the chance to disagree. It gives to the political process the chance to say to judges “butt out, this is a question for democracy”. Because, when one comes down to it, the new rights theorists are elitist and anti-democratic. They fear the tyranny of the majority so much that they want to institute a tyranny of the minority.

People who dislike Section 33 would like to blame it for anything they disagree with. They want an opportunity to deflect the analysis from an issue. They want to blame Section 33 as being the reason that same-sex marriage is not going ahead. They do not want, they positively fear, the Court being put in a position to say that heterosexual marriage is unconstitutional. Why?

Because they (the Law Profs, the pundits, certain kinds of politicians and judges) have been quite happy playing a vast game of “hide the issue under the Charter”. Most of the things that have been hidden in the Charter simply are not there. The Charter is used as a plausible rationale for the changes they wish to bring about. It is a matter of appearances.

The Charter says nothing about “sexual orientation”. It was added by judicial fiat in the mid 1990’s (after being expressly excluded when the Charter was formed in the early 1980’s). The whole “same-sex marriage” issue is based upon this basic sleight of gavel.

What Harper’s plan would do would be to propose a law without the Section 33 declaration thereby forcing the judges to bare-facedly declare that heterosexual marriage is unconstitutional and that they do not want to do. Why?

Because they want to appear to be finding rights in the Charter and they do not want to be seen to be barefacedly ruling that heterosexual marriage is as dead as a Dodo, they want to be able to hide behind Section 33 so that, in a sense, it can take the blame. That is why those who don’t like Section 33, such as Andrew Coyne of the National Post, say that it poses a threat to the Charter. Nonsense.

If the Harper proposal of bringing in a heterosexual marriage law without a Section 33 declaration goes ahead, then the Court will be declaring that heterosexual marriage is unconstitutional. This will create a major public backlash and the credibility of the Court will be damaged. This is what the “Court party” fears. The whole legitimacy of using law as social engineering may be imperilled. That is what is at issue and why the law professors, all 100 or so of them, squawked in such startling and poetical unison.

Section 33 gives a chance to keep the majority on its toes. It gives the populace a chance to debate things that some unelected judges and their activist backers would like to see decided under the guise of law in ways that cannot be changed.

That is why, at the end of the day, Section 33 is one of the best things that ever happened in Canada for the legitimacy of the Charter of Rights and Freedoms; why it is one of the best things that ever happened to Canadian social debates and why, the elitists who, in reality, hate and fear democracy want to see it abolished.

Watch for it. Increasingly in the next months and years we will all witness growing vehemence against Section 33. It is not an exaggeration to say that the future of Canadian freedom depends upon the ability of Canadians to maintain that Section against those who would give complete control of the country to some unelected and unaccountable judges. When law returns to the rails of the rule of law from the wilderness of the rule by law, then, and only then would Section 33 be unnecessary, but in the current climate, it is absolutely essential.

Iain T. Benson ©