London Free Press

November 5, 1999

A judicial, injudicious, usurping of authority

By Rory Leishman -- London Free Press

On Wednesday of last week, the Ontario legislature put on what has to have been one of the most bizarre spectacles in the history of parliamentary democracy by adopting a wide-ranging and radical bill with no substantive debate.

Attorney General Jim Flaherty kicked off the proceedings with a brief introduction of the legislation in question, Bill 5, aptly named, "Amendments Because of the Supreme Court of Canada Decision in M. v. H." He explained that in the M. v. H. decision handed down in May, the Supreme Court of Canada gave the legislature six months to amend the Ontario Family Law Act and other legislation to acknowledge that "same-sex partners are entitled to the same rights and responsibilities as common-law couples."

In conformity with this judicial directive, Bill 5 laid down rules for the adoption of children by same-sex couples. Altogether, it included amendments to 67 Ontario statutes.

Ontario Liberal Leader Dalton McGuinty hailed Bill 5 as "historic" and Ontario New Democratic Leader Howard Hampton described it as "very important" legislation. Gwen Landolt of Real Women of Canada, who is a lawyer, says the omnibus bill is so complex that it would take a lawyer at least a week of full-time work to grasp all of its ramifications.

How long, though, did the legislature ponder Bill 5? Less than three hours.

After Flaherty completed his perfunctory introduction to the bill, New Democrat MPP David Christopherson rose on a point of order to inform the Speaker, Gary Carr, that the three house leaders had reached an all-party agreement to split the remaining time for discussion of the legislation between the Liberal caucus and the NDP caucus.

Carr laconically replied: "Is there unanimous consent? Agreed."

That's it. While a few Liberals and New Democrats lauded the bill, not one Progressive Conservative MPP other than Flaherty exercised his or her right to say even a few words about this historic and very important legislation.

To compound the affront to democracy, Bill 5 was quickly passed on both second and third reading without a recorded vote. As a result, no Progressive Conservative MPP other than Flaherty actually had to stand up and be counted in favour of this revolutionary change in the law.

Hampton allowed in his brief remarks about Bill 5 that "this is something that in my view should have happened five years ago." He was alluding to similar legislation proposed by Flaherty's New Democrat predecessor, Marion Boyd, in 1994.

Her proposal provoked a public uproar so intense that enough revolting backbench New Democrat MPPs joined with most Liberal and Progressive Conservative MPPs to defeat the radical measure after a thorough legislative debate.

Flaherty contends that his bill "responds to the Supreme Court of Canada decision while preserving the traditional values of the family by protecting the definition of 'spouse' in Ontario law." That's poppycock. "Same-sex partners" as denominated in Bill 5 are, for most legal purposes, simply "common law spouses" by another name.

Defenders of the Supreme Court's decision in M. v. H. maintain that the court simply upheld the rights that Parliament and the provincial legislatures had conferred on homosexuals by adoption of the Canadian Charter of Rights and Freedoms. That, too, is nonsense.

There is no mention of homosexuals anywhere in the charter. That was no oversight. During deliberations on the charter by a joint committee of Parliament, New Democrat MP Svend Robinson proposed that sexual orientation be included as a specifically forbidden ground for discrimination. His initiative was overwhelmingly rejected by vote of 22 to 2.

The judgment of the Supreme Court of Canada in M. v. H. is typical. Under the pretence of upholding the charter, autocratic judges flout the express will of the legislative branch for the purpose of imposing their own, personal ideological agenda on the people of Canada.

That elected representatives of the people passively acquiesce in this judicial usurpation of legislative authority is scandalous. Who will stand up for the democratic rights of the Canadian people?

Abraham Lincoln epitomized democracy as, "government of the people, by the people, for the people." In light of the Bill 5 fiasco in Ontario, only the culpably blind can fail to see that what we now have in Canada in the charter era is government of the judges, by the judges and for the lawyers.

Write Rory at The London Free Press, P.O. Box 2280, London, Ont. N6A 4G1 or fax 519-667-4528 or E-mail.
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