Judicial abuse of power.

In the context of defending the alleged equality right of homosexuals to same-sex "marriage" during the election campaign, Liberal party leader Paul Martin declared: "I believe a right is a right, and that it having been established, it is the responsibility of the prime minister of Canada to support the Charter of Rights and Freedoms."

Consider that statement in relation to section 15(1) of the Charter: "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability." There is no mention of sexual orientation or marriage rights in this or any other provision of the Charter. Yet Martin insists that same-sex couples have a Charter right to marry. Why is that?

In a unanimous judgment in the Reference re Same-Sex Marriage (Dec. 9, 2004), the Supreme Court of Canada stated that the purpose of the Martin government's bill extending the right to marry to same-sex couples, "far from violating the Charter, flows from it." For Martin, that opinion is decisive. He takes the view that the Charter means whatever the Supreme Court says it means. But is that right?

Just before Christmas, 2005, the Court found that Canadians have a Charter right to engage in group sex in a public club (Dec. 21). That, too, was fine with Martin. Are there any limits to the tolerance of our Catholic prime minister for the immoral lawmaking of pagan judges? Would he go along if the Supreme Court of Canada were to ordain that Canadians have a Charter right to prostitution or infanticide?

Let us hope not. Martin's insistence that he is duty bound as prime minister to affirm any so-called right that is read into the Charter by the courts is not only wrong in principle, but fundamentally undemocratic.

Conservative Party Leader Stephen Harper has grasped this point. Following the Halpern ruling of the Ontario Court of Appeal in June, 2003, that imposed same-sex "marriage" on the people of Ontario, he introduced a motion into the House of Commons stating: "That, in the opinion of this House, it is necessary, in light of public debate around recent court decisions, to reaffirm that marriage is and should remain the union of one man and one woman to the exclusion of all others, and that Parliament take all necessary steps within the jurisdiction of the Parliament of Canada to preserve this definition of marriage in Canada."

During debate on the motion, Harper recalled that, in enacting the Charter, Parliament had deliberately excluded sexual orientation as analogous to race and ethnicity. He noted that sexual orientation "was not included, not because of some kind of accident or oversight, but deliberately and explicitly by all sides of the House of Commons."

Regardless, the Supreme Court of Canada proceeded to read sexual orientation into the Charter in a string of cases, starting with the 1995 Egan ruling. Harper derided these rulings as unconstitutional. He said: "I would point out that an amendment to the Constitution by the courts is not a power of the courts under our Constitution.

Something the House will have to address at some point in time is where its powers begin and where those of the courts end."

Harper was absolutely right then, but what has he done since? During the last election campaign, he promised that a government led by him would give all MPs a free vote on a motion to reinstate the traditional definition of marriage as between a man and a woman. Yet he also insisted: "I will never use the notwithstanding clause on this issue."

Despite having previously urged Parliament to "take all necessary steps" to reinstate the traditional definition of marriage, Harper abandoned this policy during the election campaign. He surrendered to our robed dictators on the Supreme Court of Canada, by announcing that he would never use the notwithstanding clause to override a decision of the Court to strike down any law that Parliament might enact to reinstate the traditional definition of marriage.

On this issue, then, there is no real difference between Martin and Harper: Their unwillingness to curb the judicial abuse of power is equally unprincipled and undemocratic.

Rory Leishman is the auther of the forthcoming book Against Judicial Activism: The Decline of Freedom and Democracy in Canada (McGill/Queens University Press, Montreal).

He has also been published in Judicial Activism: A threat to democracy and religion (2004). It is available from Life Ethics Information Centre, [phone].