Courts have no right to legislate.

In ruling out a national referendum on the imposition of gay-marriage by the courts, Prime Minister Jean Chretien said:

"To have a referendum to decide on the fate of the minority, it's a problem. It's why we have constitutions--to protect the rights of the minority. It's why we have the Charter of Rights. So if it is always the majority vote by referendum, who will defend the minorities? In government, we are there to protect every minority."

While deciphering the inarticulate musings of Chretien is always a challenge, it seems clear that he thinks the majority of the people in a democracy cannot be trusted to respect the legitimate rights of minorities. To illustrate this point, he opined: "The French language would have perhaps been banned in Canada for a long time if it had been a question of the majority deciding."

Such is the contempt that this prime minister holds for the people that he is supposed to represent. To be sure, both the 1867 Constitution of Canada Act and the 1982 Canadian Charter of Rights and Freedoms contain provisions that guarantee language rights for both the English-speaking minority in Quebec and the French-speaking minority in other provinces and the country as a whole. Who, though, entrenched these minority-language rights in the Constitution? It was, of course, elected representatives of the majority of the people of Canada.

Prior to enactment of the Charter, Canada had one of the best human rights records in the world. Regardless of what Chretien might think, we, the people of Canada, manifestly do not need babysitters in the courts to prevent our elected representatives in Parliament and the provincial legislatures from imposing laws that violate the legitimate rights of minorities.

As it is, the judicial activists whom Chretien has appointed to the Supreme Court of Canada and the provincial courts of appeal have no less contempt than he for the Canadian people. Like Chretien, many of these judges also profess the Christian faith, yet in their rulings they flout the universal truths of both the divine and natural law. And instead of upholding the principles of the common law and the Constitution as written and intended by the legislative branch of government, our unelected judicial guardians invoke the Charter as a pretence for rewriting the laws of Canada to suit their personal ideological preferences.

The "gay-marriage" ruling of the Ontario Court of Appeal is only the latest and most outrageous judicial excess. In an attempt to justify this arrogant and illegitimate decision to amend the traditional and lawful definition of marriage that has stood the test of centuries, the Court stated:

"It is our view that the dignity of persons in same-sex relationships is violated by the exclusion of same-sex couples from the institution of marriage.

Accordingly, we conclude that the common-law definition of marriage as "the voluntary union for life of one man and one woman to the exclusion of all others" violates s.15(1) of the Charter. "

There is no mention of "dignity" in s. 15(1), or any other provision, of the Charter. Neither is there any mention of sexual orientation or same-sex couples. A requirement of dignity and equality rights for homosexuals has been read into the s.15(1) of the Charter by the Supreme Court of Canada (Egan v. Canada, 1995). And it's on the basis of this judicial distortion of the Constitution that the Ontario Court of Appeal has imposed gay marriage on the people of Ontario.

In a genuine democracy, the courts do not legislate. They do not promulgate new laws conferring unprecedented rights on favoured minorities. Enacting laws is a legislative function that is properly exercised only by elected representatives of the people.

Chretien disagrees. And so do the majority of MPs for all parties except the Canadian Alliance. Instead of invoking the notwithstanding clause of the Constitution to uphold the legislative authority of Parliament, most MPs kowtow to unelected judges on the Supreme Court of Canada who have usurped ultimate power to enact, amend, and strike down the laws of Canada.

That's a disgrace. Will the people of Canada meekly acquiesce in the judicial imposition of gay marriage? Surely not. All Canadians who uphold the principles of parliamentary democracy should direct their respective MPs to vote down the draft bill on gay-marriage that the Chretien government has submitted for approval to our overweening judicial masters on the Supreme Court of Canada.

Rory Leishman is a regular columnist and lives in London, ON. He is also a contributor to our new book Judicial Activism: a threat to democracy and religion, advertised in this issue. His home page is www.roryleishman.com.