National Post

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Monday, October 25, 1999

Supreme bias
National Post

On the day she was appointed to the Supreme Court of Canada, Justice Claire L'Heureux-Dube swore an oath of office to uphold the principle of judicial impartiality. Speaking last Thursday at a conference on same-sex benefits at Queen's University in Kingston, Ont., she skewered this principle.

Canadian law functions, said Justice L'Heureux-Dube, as an "anchor and a constraint" when it comes to non-traditional relationships. "Why must it value some relationships and reject others? Should a person's entitlement to pensions, old age security, parental leaves and support payments hinge on his or her marital status?"

Where does this place the justice when she is asked to judge a case involving these questions?

For more such cases there will certainly be. The Supreme Court's decision last May in M. v. H. did not finally settle the question of how the federal and provincial governments should deal with same-sex relationships. Nor did it prevent them from using the "notwithstanding clause" to set aside the ruling; nor from creating new laws that could trump the legal effect of the decision.

The actual political effect of the M. v. H. decision -- which declared Ontario's Family Support Act unconstitutional because its definition of a spouse excluded same-sex relationships -- has been mass confusion. More than 1,000 provincial and federal laws must now be redrafted. And since the court provided no guidance on cases where excluding same-sex "spouses" might be permitted as a bona fide occupational requirement -- such as jobs in faith-based agencies or religious schools -- the Supreme Court will have to clarify its judgment shortly.

When this happens, Justice L'Heureux-Dube must recuse herself from the bench. Her comments last Thursday cast aside judicial impartiality. And she had already announced, at a University of London conference last March, a broad intention to employ judicial discretion to enshrine her own views in law. Judges, she said, "have lots of discretion ... so put yourself in where there is nothing else to go on."

Among other problems, court decisions that extend marriage benefits to same-sex couples open the doors to putting other dependent relationships, such as widowed brothers and sisters, on a par with marriage. Indeed, last week, Anne McLellan, the Justice Minister, said she is considering extending legal rights to such couples.

These are important questions that Parliament should decide. But if the Supreme Court takes control of them instead, Justice L'Heureux-Dube has already recused herself from their adjudication.

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