National Post

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Friday, May 21, 1999

High court reopens battle between judges, politicians
Ruling reignites debate over court's role in setting law

Luiza Chwialkowska
National Post

By ordering the Ontario government to extend the legal definition of spouse to include same-sex partners, a move that the Ontario Legislature debated and rejected five years ago, the Supreme Court of Canada has engaged in the most flagrant example of "judicial activism" to date, critics say.

The M. v. H. decision yesterday reignited a debate among legal scholars over whether the court is motivated more by the judges' personal political views than by the law.

"It certainly is judicial activism," said Rainer Knopff, a law professor at the University of Calgary. "The court is effectively doing what the Ontario Legislature refused to do."

A debate over the balance of power between courts and legislatures has emerged since the 1982 Charter of Rights and Freedoms gave courts the right to strike down legislation. The exercise of this power aroused much controversy when, for example, a B.C. court ruled that possession of child pornography was protected under the Constitution, and when the Supreme Court ordered Alberta to extend human rights protection to homosexuals.

Defenders of the court say it's the subject matter of such decisions, and not the rulings or the process, that create the controversy.

"Every time the Supreme Court hands down a decision that a certain part of the community doesn't like, they call it judicial activism," says Errol Mendes, director of the Human Rights Research Centre at the University of Ottawa.

"There are no raving political dictums being thrown into this decision," says Mr. Mendes. "It's based on fine legal analysis."

Lorraine Weinrib, a University of Toronto law professor, says the Ontario Legislature created a liberal policy when it made spousal support obligations applicable to common-law relationships, and binding on both men and women.

"It is the Ontario Legislature that created this support obligation as gender neutral, and arising outside of marriage, and did not tie it to whether there were children in the relationship," she said. "All the court is doing is superimposing on the legislation the charter requirement of equality," she said.

But critics say since gay rights are not explicitly written into the charter, the judges exercised a good deal of discretion.

"I don't believe that the charter is clear on this issue. One could have easily interpreted the charter to sustain the law," says Prof. Knopff. "Of course [the judges] are reading their own predilections into this."

As recently as 1995, the court decided not to extend spousal rights to a same-sex couple. Since then, the composition of the court has become more liberal-minded, says Ted Morton, a political scientist at the University of Calgary.

"What has changed since 1995 is the judges. One has died and one has retired, and they have been replaced by people with different views on gay rights," he says.

"It's now obvious for all to see that these decisions have nothing to do with the Charter of Rights, and everything to do with the judges," said Prof. Morton. "There's never been a more undemocratic decision than this . . . I think this is probably the most activist decision to date."

Prof. Knopff says the judges might have prematurely pre-empted the electorate on redefining gay rights.

"There is a policy debate going on about the extent to which benefits that married couples have should be extended to non-married folk. The danger of this ruling is that it risks derailing the debate," says Prof. Knopff.

But not all decisions can be left to politicians, says Patrick Monahan, professor at Osgoode Hall Law School at York University.

"The idea inherent in having an entrenched charter is that there has to be more than a majority vote in a legislature [to limit minority rights]. There have to be principled arguments as to why same-sex spouses should not be treated differently," said Prof. Monahan. "Now the court's assessment of the justification for limiting same-sex rights has changed," he said.

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