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Wednesday, December 08, 1999

Absence of balance
Public opinion is too divided on gay rights for judges to take sides
Ted Morton
National Post

In November, 1981, the Canadian Judicial Council reprimanded then-judge Thomas Berger for publicly criticizing a first ministers' decision to delete aboriginal rights from the Charter of Rights and Freedoms. (They were later restored.) Judge Berger's speaking out on "a matter of serious political concern and division when that ... controversy was at its height," the CJC ruled, violated the age-old judicial norm of impartiality. The CJC concluded Judge Berger's "impropriety" was serious enough to "support a recommendation for removal from office," but stopped short of recommending his removal because it was the "first time this issue has arisen in Canada." In the event, Judge Berger chose to resign anyhow.

What were the words that brought about Judge Berger's departure? He had criticized the first ministers' decision as "mean-spirited and unbelievable." Describing most natives as "poor and powerless," Judge Berger said their well-being had been "sacrificed" in the bargain struck by the first ministers.

Now compare Judge Berger's offence with current Supreme Court of Canada Justice Claire L'Heureux-Dube's recent declarations on the issue of gay rights and the legal status of homosexual couples. In October, she challenged a conference on "domestic partnerships" at Queen's University that, "In failing to recognize and support partnerships, traditional or otherwise, are we not doing violence to the fabric of our community?"

The rhetorical form of Judge L'Heureux-Dube's question hardly disguises her own position. Or at least it didn't to a national journalist covering the conference. Southam reporter Janice Tibbets reported the speech as follows: "Justice Claire L'Heureux-Dube ... says it's time for the law to look beyond traditional relationships of men and women and start extending equality to partners of all types who choose to live together."

Judge L'Heureux-Dube's remarks were made in the wake of the Supreme Court's controversial M v. H gay rights ruling in May, which struck down the Ontario Family Act's definition of spouse as a member of the opposite sex. Unlike Judge L'Heureux-Dube, however, the court had been careful to emphasize that its holding was limited to the facts of the case before it and that it did not address or affect marriage laws. These limitations notwithstanding, the ruling still affected 67 other Ontario statutes, and similar traditional definitions of spouse in hundreds of other provincial and federal statutes.

Indeed, the judge made these remarks just four days before the Ontario government announced the legislative amendments that Premier Mike Harris said it was "forced" to make in order to comply with the six-month deadline imposed by Judge L'Heureux-Dube and her colleagues in May.

One might have thought this might violate the CJC's rule against judges' speaking out on "a matter of serious political concern and division when that ... controversy was at its height." Apparently not Judge L'Heureux-Dube.

In fact, the outspoken judge had made even more pointed remarks at an international gay rights conference in London, England, in July. Readers may recall that in 1994 Bob Rae's NDP government attempted to amend the Ontario Family Act to include same-sex partners. This was defeated in a free vote, in which a number of government members joined opposition parties to defend the traditional definition of spouse. Judge L'Heureux-Dube described this to her audience as an example of "a general failure in the political process to recognize the rights of lesbians and gays without the pressure of court decisions behind them."

Why, we might ask, is the outcome of a free vote described as a "failure" and not just a "loss"? What message did this send to the current Ontario government, which was then in the midst of deliberating its own legislative response to M v. H?

Evidently, Judge L'Heureux-Dube did not want her message to be veiled. After summarizing gay rights' legal victories in Canada, she declared:

"Despite these developments, however, there is much work to be done. Definitions of spouse in many federal laws that exclude same-sex partners are still present in many laws in many provinces [sic], and discrimination and prejudice against gays and lesbians in Canadian society is still too prevalent. The day has not yet come when all laws in Canada recognize same-sex partnerships as equally worthy and valuable as those between members of the opposite sex. Amending the many legislative distinctions between same-sex and opposite sex couples will require extensive legislative amendments to a variety of statutes, or many court challenges to individual statutes."

Is she saying that if the legislatures won't do it, the courts will?

In her reported oral remarks, Judge L'Heureux-Dube went even further.

She appeared on the same dais as Justice Michael Kirby of the Australian High Court, a recently out-of-the-closet gay, the Svend Robinson, as it were, of the new international judicial jet set. Judge Kirby encouraged judges to use ambiguity in statutes or common law to advance the cause of gay equality. Not to be outdone, Judge L'Heureux-Dube announced herself as "an equality person." "I hate discrimination," she exclaimed, "I will do anything I can to achieve it [equality]."

Anything? Again, Judge L'Heureux-Dube did not leave her audience guessing as to her meaning: "We [judges] have lots of discretion," she told them. "So put yourself in where there is nothing else to go on. ... I am not afraid to strike down laws."

Indeed, she is not. No one doubts her moral convictions and readiness to act on them. But this is precisely what the Berger inquiry said sitting judges must refrain from doing:

"If a judge becomes so moved by conscience to speak out on a matter of great importance, on which there are opposing and conflicting political views, then he should not speak with the trappings and from the platform of a judge but rather resign and enter the arena where he, and not the judiciary, becomes not only the exponent of those views but also the target of those who oppose them."

The Berger inquiry was clear on the reasons for this rule:

"Politically controversial statements by a citizen who is no longer a judge and who can never again be called on to be a judge, do not destroy the necessary public confidence in the impartiality of judges. ... Not only must judges be impartial, the appearance of impartiality must be maintained for the fair and proper administration of justice."

Judge L'Heureux-Dube has gone far beyond the permissible limits laid down by the Berger inquiry. She has staked out personal positions on issues that are under active political debate and will certainly be subject to additional litigation. Indeed, EGALE, the rights advocacy organization that directs most gay rights litigation in Canada, has recently announced it intends to ask the Supreme Court to overturn Ontario's legislative response to M v. H as inadequate. EGALE charges the Harris government has introduced "a separate and unequal category which reinforces discrimination against lesbians and gay men." This "privileging [of] heterosexual relationships," EGALE argues, "is contrary to the equality guarantee and thus unconstitutional."

How can Judge L'Heureux-Dube appear to be impartial on this issue?

For this very reason, both National Post editorials and Professor Ian Hunter have already written that Judge L'Heureux-Dube should be recused from any future gay rights cases before the Supreme Court. No doubt she should. But this hardly goes far enough. The facts in this case demand a sterner sanction. Judge L'Heureux-Dube's political advocacy from the bench far exceeds that of Judge Berger's. The Canadian Judicial Council made it clear at the time that Judge Berger's infractions "would support a recommendation for removal from office," but it refrained from doing so because it was the first instance of this kind. But as the late chief justice Bora Laskin told the Canadian Bar Association several months later, "A matter like the Berger case is not likely to recur; the Canadian Judicial Council has signalled the danger of recommended removal from office if it should recur."

As a Canadian citizen, Claire L'Heureux-Dube is free to join the gay rights movement. But not as a sitting Canadian judge.

Ted Morton is a professor of political science at the University of Calgary, a Reform party member, and one of Alberta's two senators-elect.

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