National Post

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Friday, May 21, 1999

Dissenting judge shies away from spotlight
Justice Gonthier

Elena Cherney
National Post

Supreme Court of Canada justices from left to right, back row: Frank Iacobucci, Jack Major, Michel Bastarache, and Ian Binnie. Front row: Peter Cory, Claire L'Heureux-Dube, Chief Justice Antonio Lamer, Charles Gonthier, and Beverly McLachlin.

Until yesterday, Justice Charles Gonthier, while more conservative than most of his peers on social issues, stood solidly in the middle of a bloc of justices who were not yet ready to grant gay couples equal rights.

But yesterday, the Montreal-born judge known for his caution showed his hesitation to use the Charter of Rights and Freedoms to override legislation and became the court's lone opponent of equal status for gay couples.

Justice Gonthier's position on the landmark M. v. H. case surprised some court-watchers, in part because they say the judge is not known for striking out on his own, noted Peter McCormick, a political science professor at the University of Lethbridge.

"He hasn't authored as many judgments" as most other justices, said Carl Baar, a professor of political science at Brock University. "But he's very active intellectually."

In 1993, when the Supreme Court issued its first ruling on gay rights, Justice Gonthier concurred with the majority that Brian Mossop, a gay federal employee, did not face discrimination under the Canadian Human Rights Act when Ottawa failed to give him a paid day off to attend his partner's father's funeral. At that time, only three Justices, Claire L'Heureux-Dube, Peter Cory, and Beverly McLachlin, dissented from the majority opinion.

The court's opposition to grant

ing gay couples equal rights began to crumble with the Egan-Nesbit case in 1995, said Prof. McCormick.

While the long-time male partners lost in their attempt to gain the same spousal pension benefits as heterosexual couples, four justices -- L'Heureux-Dube, Cory, McLachlin, and Frank Iacobucci -- dissented, affirming their recognition of gay rights and creating a bare 5-4 majority against the two men.

But several strong voices on the bench rose to make a case against recognizing gay relationships. Justice John Sopinka argued that treating homosexual and heterosexual couples alike is "a novel concept" in the public mind and that it was therefore reasonable for the court to maintain the status quo.

But the death of Justice Sopinka and the retirement of Justice Gerard Laforest -- who once wrote that a heterosexual couple has a special status because family law is grounded in the reproductive unit -- altered the balance on the court, said Prof. McCormick.

"The old minority of the court" -- those already prepared to see homosexual couples placed on equal footing with heterosexuals -- "has won over the newcomers," said Prof. McCormick. New justices Ian Binnie and Michel Bastarache concurred yesterday with the majority opinion, which was written by Justices Cory and McLachlin.

The same two justices also wrote the opinion in last year's ruling on a Alberta teacher who was fired because he was gay. In the Delwin Vriend case, the court unanimously ruled that Alberta evaded its Charter duty to prevent discrimination against gays.

But that case, noted Prof. Baar, did not deal with the relative rights of homosexual and heterosexual couples. And when it comes to homosexual couples, Justice Gonthier departs from his colleagues to argue that gays are not entitled to all of the same consideration as heterosexuals.

Child-bearing, opposite-sex relationships, Justice Gonthier argues, are "fundamentally different" from same-sex relationships.

That argument recalls a concept which Justice Gonthier espoused during his tenure on the bench of the Quebec Superior Court and Quebec Court of Appeals.

Justice Gonthier was a proponent of the "similarly situated" test for equality, said Julius Grey, a Montreal constitutional lawyer and McGill University law professor. According to that standard, discrimination can only be seen to have been perpetrated if the alleged victim was "virtually the same" in every respect as those who were allegedly favoured.

Justice Gonthier, who was named to the Quebec Superior Court bench in 1974, displayed a typical Quebec preference for allowing legislators rather than judges to change laws. "He has less of a tendency to insert the Charter into areas where it had not been before," said Prof. Grey.

The Quebec government is expected to introduce broad legal changes next month to expand the legal rights of gays and lesbians.

While Justice Gonthier tends to be socially conservative, and writes mostly on tax, insurance, and corporate matters, he could not be classified as extreme in his positions, said Prof. Baar. When the Supreme Court was called to convene an emergency summer panel to consider the case of Chantal Daigle, the Quebec woman whose former boyfriend had obtained an injunction barring her from aborting his child, Justice Gonthier chaired the panel, and the injunction was overturned.

Justice Gonthier would never be swayed by the opinions of other justices or the mood of the public to support a position with which he disagreed, said Judge Joseph Mendelson, a McGill University law school classmate of Justice Gonthier.

"He's a man that has always had a mind of his own," said Judge Mendelson. "He didn't go with the mob."

Justice Gonthier, whose father was Canada's first francophone auditor-general, is a devout Catholic, father of five sons, and husband of a Montreal gynecologist.

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