Coercing Virtue (11 page)

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. The 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.

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 process 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:

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.

As Justice Claire L’Heureux-Dubé said in her notes
for an address at an international conference on how to normalize homosexuality: “Changes in the legal realm, however, have been accompanied by a general failure of the political process to recognize the rights of lesbians and gays without the pressure of court decisions behind them.” Attempts to make changes through the political process, she said, have been controversial and have often led to public criticism and backlash. She then cited changing public opinion polls on these subjects to show that the public is generally supportive of extending rights to same-sex couples. “This indicates that courts are taking the lead in changing society’s attitudes to same-sex partnerships.” After that statement, it must have taken considerable courage to assert that court judgments in this area “reflect the values of ordinary Canadians.”

The Canadian Court has even reproduced, under another name, and against the intentions of the
Charter’s
drafters, the American excrescence of substantive due process.
British Columbia Motor Vehicle Reference
(1985) concerned the constitutionality of a provision in the province’s
Motor Vehicle Act
which made the act of driving with a suspended license an absolute liability defense (one not dependent on criminal intent) punishable by mandatory imprisonment and a fine. The Court faced the question of whether section 7 of the
Charter
– guaranteeing the right not to be deprived of life, liberty, or security of the
person except in accordance with the principles of fundamental justice – was to be given a substantive or a procedural meaning. That is, was the Court confined to judging the fairness of the procedure by which the law was applied or could it also judge the appropriateness of the law’s substantive content? This, of course, was the same question the United States Supreme Court faced – and answered so disastrously in
Dred Scott
– in construing the due process clause’s guarantee of the same rights. “There was,” Knopff and Morton note, “ample documentary evidence that many of the most influential framers intended the narrower, procedural meaning.”