The Court rejected the argument based on the equality rights of section 15: “To state that the voluntary adoption of a code of conduct based on a person’s own religious beliefs, in a private institution, is sufficient to engage s. 15 would be inconsistent with freedom of conscience and religion, which co-exist with the right to equality.” The College of Teachers could appropriately consider equality rights, but it was also required to consider, as it had not, the right of religious freedom. Neither right is absolute. “TWU’s Community Standards, which are limited to prescribing conduct of members while at TWU, are not sufficient to support the conclusion that BCCT should anticipate intolerant behavior in the public schools. Indeed, if TWU’s Community Standards could be sufficient in themselves to justify denying accreditation, it is difficult to see how the same logic would not result in the denial of accreditation to members of a particular church.”
This is obviously not a case in which religious beliefs always trump the protection of homosexual conduct. Yet, given the American Supreme Court’s hostility to religion and solicitude for homosexuality, it is easy to think the decision might well have gone the other way in the United States.
Abortion
Abortion occupies an identical position in the Canadian Charter and in the American Constitution: both documents are silent on the issue, leaving the dispute between the opposing forces for resolution in the political arena. Section 7 of the Charter, which protects the right to life and the right to liberty, can be appealed to by both the anti-and the pro-abortion factions. From the beginning, then, the Supreme Court should have stated that neither provision was enacted with abortion in mind, and that the Charter, having deliberately avoided the issue, had nothing to say and so the issue must remain with the legislature. In Canada, however, the anti-abortion side actively but futilely sought a Court ruling that the “right to life” guaranteed in section 7 of the Charter banned abortion. In the United States, pro-abortionists aggressively sought a ruling that abortion is a constitutional right and achieved victory in 1973 in Roe v. Wade. Anti-abortionists’ argument that abortion is forbidden by the guarantee against the deprivation of life without due process of law in the Fifth and Fourteenth amendments has, predictably, met with no success.
The outcomes have been similar in Canada and the United States because feminists and their New Class allies in both countries overwhelmingly support abortion rights. Given the judicial identification in both countries with those groups, the pro-abortion side has won. The political response to the judicial encouragement of abortion has not been as different in Canada and the United States as might have been expected, given the Charter’s notwithstanding clause – which, theoretically, is much more easily invoked than the American Constitution’s difficult procedure for securing an amendment. Yet the capacity for effective political response in the two countries is about the same: nil. Once a supreme court has spoken, creating what it chooses to call a constitutional right, the psychological advantage swings, usually decisively, in favor of a position that had previously been unable to prevail in the legislature. Unless the government, national or provincial, is determined – unless restoring the previous position, the status quo ante, is an important part of its agenda (which in the case of abortion it never is) – the notwithstanding clause will remain unused and the pro-abortion forces will have won what they could not previously persuade the people and the legislature to accept. As a result, the number of abortions in Canada rose substantially, just as after Roe the rate increased spectacularly in the United States.
Knopff and Morton attribute the Canadian Court’s altered willingness to accept the pro-abortion decision to more than the replacement of Canada’s statutory Bill of Rights by the Charter of Rights and Freedoms. The latter, after all, was silent, and deliberately so, on the issue of abortion. The change by the Court, they point out, was due to the dramatic change in the social and political climate. Radical feminism had emerged as a major force in Canadian politics, and women secured seats on the Supreme Court as well as much greater participation in the legal profession. This is not to say that women are uniformly pro-abortion, but the women entering the legal profession, having attended university and law school, were members of the New Class, and they heavily favored abortion rights. In Canada as in America, immersion in higher education these days produces a pronounced swing to the cultural left.
In Morgentaler, Smoling and Scott v. The Queen (1988), four of the five Justices in the majority found procedural deficiencies in the statute regulating abortion, but Justice Wilson wrote that it would merely be a waste of Parliament’s time to address procedures because women have a substantive right to abortion. She ignored the legislative history of section 7, perhaps because that history tended to contradict the position she espoused. In language remarkably similar to that of the American Justices Blackmun (in Roe) and Brennan (in the contraceptive case, Eisenstadt v. Baird [1972]), and the joint opinion of O’Connor, Kennedy, and Souter (in Planned Parenthood v. Casey), she argued that section 7 promoted “human dignity and worth,” guaranteeing “a degree of personal autonomy over important decisions intimately affecting their private lives.” Like the American judges, Justice Wilson was unconcerned with what the persons who adopted the Charter understood themselves to be doing. Acknowledging that Parliament had an interest in protecting the fetus in the later stages of development, she offered her personal opinion that Parliament’s power might become legitimate “somewhere in the second trimester.”
Justice McIntyre dissented, saying “when in the name of constitutional interpretation, the Court adds something to the Constitution that was deliberately excluded from it, the Court in reality substitutes its view of what should be so for the amending process.” That statement seems undeniable.
The anti-abortion forces proved equally ready to use the Charter for purposes it was not designed to encompass. In Borowski the plaintiff wanted the courts to declare that the same statute stricken in Morgentaler outlawed all abortions because of section 7’s protection of “everyone” as entitled to life. But since the prior case had invalidated the statute, the Court, after hearing argument and a considerable subsequent delay, announced that the present nonexistence of the statute rendered Borowski’s claim moot. Justice Sopinka’s opinion for the Court said, with respect to standing, that it was sufficient that a plaintiff show that “he has a genuine interest as a citizen in the validity of the legislation” he challenges. In a word, ideology will suffice. Mootness, he said, requires that there be “no present live controversy” which “affects the rights of the parties.” But “[t]he general policy or practice is enforced in moot cases unless the court exercises its discretion to depart from its policy or practice.” “Discretion” seems to be a synonym for lawlessness.
That this is not too harsh a judgment is demonstrated by the Court’s contrasting decision in Daigle v. Tremblay (1989). In this case Daigle, having broken with her lover, Tremblay, after five months of cohabitation, decided she wanted an abortion. She cited no reasons other than a desire not to have a child. Abortion here was clearly a form of second-thought birth control. (She had stopped taking contraceptive pills before conception and, for four months afterward, had made no effort to end her pregnancy.) Tremblay sued and was granted an injunction against the abortion under the Quebec Charter of Human Rights, whose right to life ran to “human beings” rather than the “persons” protected by the national Charter and was arguably broader – broad enough, in fact, to outlaw the killing of a fetus, which is a human being, whatever the legal status of a “person” might be. Daigle was eighteen weeks pregnant when she and Tremblay separated and the case began. The Quebec court’s injunction was rushed to a hearing in the Supreme Court of Canada within one month.
On the day in question, when the Justices reconvened after a morning of argument, they were told by Daigle’s counsel that he had just learned that his client had gone ahead with the abortion in the United States. She had then been pregnant for just over five months. Th
e reasoning of Borowski would indicate that the case was moot, but the Court decided to defer decision of that issue and went on with the hearing. Less than two hours after the conclusion of arguments, the Court announced that it was vacating the injunction and would issue an opinion later. After three months it did. The fetus was found not to have a right to life under the Quebec Charter because the framers had elected not to address the question of the fetus’s status.
Though the unsigned unanimous opinion reached the proper conclusion, it did so in a manner and in a context that makes it proper to label the opinion an instance of judicial activism. In the first place, if Borowski was moot, it is difficult to see why Daigle was not as well. Both cases were capable of laying down general rules for the nation. It is possible to think that in Daigle the Court exercised its discretion to find the case not moot because it wanted to validate the pro-abortion position and not the anti-abortion view.
The argument in Borowski that the legislature was not considering the protection of the fetus certainly seems correct, but it is equally applicable to the claimed right of a woman to an abortion. The two conclusions seem inseparable. Indeed, it may have been stronger in Daigle, since the omission of any position about abortion was known to have been deliberate in the framing of the Charter of Rights. The Canadian Court should have decided that neither the national nor the provincial Charter had anything at all to say about abortion – meaning that the Court had no authority to decide the case either way. The same conclusion should have been reached in the United States, where neither the Fifth nor the Fourteenth Amendment was ratified with any thought of abortion. In both countries, such rulings would have returned the moral issue of abortion to the legislatures, where the decision belongs. In both countries, the Justices elected to decide themselves what morality required.
In explaining his vote in the Morgentaler case, Chief Justice Lamer said in a 1997 interview that, while he was personally opposed to abortion, he even more firmly believed that he “should not impose upon others [his] personal beliefs.” That statement can only mean that he is willing to impose on anti-abortionists the personal beliefs of those who favor abortion. Not only does the “explanation” leave the mystery of his vote murkier than ever but the statement is precisely the same as the lame excuse used by United States politicians who try to mollify both sides after voting for abortion: “I am personally opposed, but …” The Canadian Chief Justice thought the issue was his morality versus others’ morality, though neither had been enacted in law. That approach can only be a surrender to New Class attitudes.
The Supreme Court’s conduct in cases that in some way suggest that an unborn child is anything other than part of the mother’s body is in striking contrast to the performance of the Court in creating laws favorable to abortion. The slightest recognition of the fetus as a separate being threatens not only the legal but the moral legitimacy of abortion. In these areas the Court adopts the radical feminist position.
Winnipeg Child and Family Services v. D.F.G. (1997), for example, reviewed a court order placing a woman in the custody of the director of the agency until the birth of her child. The woman had three previous children, two of whom were permanently disabled because of her addiction to glue sniffing. The case was moot by the time it reached the Supreme Court, but the legal issues had not previously been decided, so the Court proceeded to decide the law in the abstract. The existing law of tort was held not to support the order, and the question become whether the common law should be extended for that purpose. Here the Court showed a high degree of modesty and respect for the legislature, which would have been wholly admirable were it not in stark contrast to its behavior where radical feminist views are opposed to the legislature’s choice. Justice McLachlin repeatedly fell back on “the long-established principle that in a constitutional democracy it is the legislature, as the elected branch of government, which should assume the major responsibility for law reform.” Quite true, but not at all the way the Court behaved when it created homosexual and abortion rights. One is tempted to conclude that the difference is political rather than legal, and that the Court in these cases was enacting the New Class agenda, which, of course, includes the radical feminist agenda.
The dissent by Justices Major and Sopinka disagreed: “To the extent that a change in the law in the circumstances of this case is required, the much admired flexibility of the common law has proven adaptable enough over centuries to meet exigent circumstances as they arise. That flexibility is surely needed in this appeal.”
Whether one agrees with the majority or the dissent about the wisdom of deferring to the legislature when a change in law is proposed, it is surely true that the Court majority appears to have inverted the principle of deference. The common law has been the arena of judicial innovation, subject to the superior power of the legislature to revise the results. A constitution is, in contrast, even with the Canadian notwithstanding clause, almost immune to legislative revision. If judicial innovation is ever justifiable, therefore, it would appear to be so with respect to common law and not to constitutional law.
Homosexuality
Judicial normalization of homosexuality against the wishes of a majority of the electorate has gone much further in Canada than it has in the United States. When the Charter was being drafted, the government and the Parliamentary Committee on the Constitution refused to place protection for sexual orientation in the Charter, despite persistent lobbying by homosexual activist groups. Undeterred, in Egan and Nesbitt v. Canada (1995), the Supreme Court itself inserted sexual orientation as a forbidden ground of discrimination, along with race, national or ethnic origin, color, religion, sex, age, and physical or mental disability – grounds that the Charter makers did include in section 15, the equality provision. In the face of the Charter’s silence – which was deliberate, indicating a desire to leave matters where they stood – the decision can only be called extraordinary. But what happened next may be viewed as requiring a stronger adjective.
The discussion that followed held it unconstitutional not to include sexual orientation as protected from discrimination in the Alberta Human Rights Act (Vriend v. Alberta, 1998) and as requiring spousal support on the dissolution of a homosexual relationship (M. v. H., 1999). Segments of the homosexual rights movement are not satisfied with piecemeal reforms of this type. Their objective is to remake society so that homosexuality is regarded as the moral equivalent of heterosexuality. Since marriage has been defined as the union of a man and a woman, it follows that traditional understandings of marriage and the family must be undermined. Demanding the legalization and social recognition of same-sex marriages is a long step in that direction, and litigation is pending in lower Canadian courts to make such marriages a constitutional right (even as some American state courts have done). The equation of marriage between homosexuals and marriage between men and women was one result that voters and elected representatives were unwilling to reach.
Vriend is worth a closer look. In this case, when Delwin Vriend answered his employer, a private school, that he was gay, he was fired. A unanimous Supreme Court held that Alberta acted unconstitutionally in failing to include homosexuals in the list of groups specially protected from even private discrimination. Alberta’s omission was deliberate because the subject was contentious and the public was roughly evenly divided. Justice Cory’s opinion rejected the argument that courts should defer to the legislature’s decision not to enact a particular provision because, among other things, it rested on “the very problematic distinction it draws between legislative action and inaction.” Taken seriously, as one supposes it must be, that statement would mean that the Court can direct a legislature to act (which, together with the power to strike down enactments, would eliminate any need for a legislature) or, at the very least, it means that when the legislature deals with a topic, the Court can add such amendments as it thinks should have been included. It is a remarkable assertion of judicial supremacy. The Court said the democratic pro
cess had not responded adequately (there could, apparently, be only one adequate response). Overriding the legislature, the Court required that the province’s Individual Rights Protection Act be enforced as though it contained protection for homosexuals. This decision was an astounding judicial intrusion based on a bizarre rationale. The Court made it clear that it was assuming the role of the ultimate arbiter of the “democratic values and principles” of the Charter. The result was a dramatic invasion of the legislature’s domain. Significantly, the Alberta legislature did not respond by invoking the notwithstanding clause to undo the Court’s adventurism. Rather, it promised to use section 33 to negate any court rulings imposing same-sex marriages. By then, the notwithstanding clause had become virtually illegitimate in the view of many, and, in any case, a legislature too divided to enact a measure cannot muster the votes to repeal the Court’s decision.
In M. v. H. (1999) the Supreme Court, by a vote of eight to one, held that denying same-sex couples access to Ontario’s spousal support legislation violated the guarantee of equality without discrimination. Justices Cory and Iacobucci, writing for the Court, stated:
The exclusion of same-sex partners … promotes the view that M., and individuals in same-sex relationships generally, are less worthy of recognition and protection. It implies that they are judged to be incapable of forming intimate relationships of economic independence [or was it dependence?] as compared to opposite-sex couples. … [S]uch exclusion perpetuates the disadvantages suffered by individuals in same-sex relationships and contributes to the erasure of their existence.
Lower courts have overturned definitions of “spouse” that exclude members of same-sex partnerships; required that members of same-sex couples be allowed jointly to adopt children; and held that a benefits statute could not contain a separate definition of “same-sex partner” and opposite-sex partner, even though both received the same benefits, because the separate definitions create a separate regime that separates (though only verbally) members of the two kinds of partnerships.
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