Personal ideologies undermine the Charter.

Within the next few months, the Supreme Court of Canada will hand down a decision on the so-called gay-marriage issue. The result is a foregone conclusion: following the outrageous precedents set by the Ontario and British Columbia Courts of Appeal, Canada's top court will affirm that the common-law definition of marriage as the voluntary union for life between a man and a women violates the equality rights of homosexuals that are supposedly enshrined in the Canadian Charter of Rights and Freedoms.

Any doubt about this outcome was removed last August, when Prime Minister Paul Martin announced the appointment of two more gay-rights activists to the Supreme Court of Canada--Rosalie Abella and Louise Charron of the Ontario Court of Appeal. Abella is the judge who ruled that homosexuals have a Charter right to engage in consensual sodomy with boys as young as 14, while Charron held that same-sex couples are entitled to the same legal rights and benefits as common law heterosexual couples.

These rulings were wholly illegitimate. Instead of upholding the law, Abella and Charron arbitrarily changed it to conform to their personal ideological, preferences. In doing so, they emulated the excesses of judicial activists on the Supreme Court of Canada who have routinely invoked the Charter over the past 20 years as a pretence for flouting, amending and quashing laws that have been duly enacted by elected representatives of the people

Some principled judges have objected to this gross abuse of the judicial process. For example, in a 1987 case, former judge William McIntyre of the Supreme Court of Canada pointed out: "The Charter should not be regarded as an empty vessel to be filled with whatever meaning we might wish from time to time. The interpretation of the Charter, as of all constitutional documents, is constrained by the language, structure and history of the constitutional text, by constitutional tradition, and by the history, traditions, and underlying philosophies of our society."

With this forthright statement of judicial restraint, McIntyre upheld the proper role of the judiciary in a parliamentary democracy. Most of his colleagues paid no heed. A few months later in the 1988 Morgentaler case, they twisted the language, structure and history of the Charter out of all recognition, by ruling that the guarantee of life, liberty and security of the person in section seven is incompatible with what few restrictions on abortion then remained in the Criminal Code. As a direct result, Canada acquired its ignominious status as the only supposedly democratic country in the world that provides no legal protection for the life of babies in the womb

In a strenuous dissent in this Morgentaler case, McIntyre found no valid constitutional objection to the restrictions on abortion in the Criminal code. "Consequently," he said, "if there is to be a change in the law concerning this question it will be for Parliament to make. Questions of public policy touching on this controversial and divisive matter must be resolved by the elected Parliament. It does not fall within the proper jurisdiction of the courts."

By the same token, it does not fall within the proper jurisdiction of the courts to make radical changes in the common law. That, too, is a prerogative of the elected Parliament. Yet it's all but certain that the Supreme Court of Canada will usurp this legislative authority of Parliament by imposing same-sex marriage in the laws of Canada.

What can be done to curb the autocratic powers of arrogant judges? President George W. Bush has shown the way, by backing a constitutional amendment that will bar the courts from amending the traditional definition of marriage.

In Canada, there is a simpler and easier solution. Parliament can invoke the notwithstanding clause of the Constitution to declare in a simple statutory enactment that the traditional definition of marriage shall remain in effect in Canada, despite any supposed conflict that the courts might perceive with the equality rights of homosexuals.

To get such a statute enacted, all that is required is sufficient political will. Alas, it is not available. The sorry fact is that while Martin and some of the provincial premiers still pay lip service to the Christian faith, not one of them is willing to follow the example set by President Bush in upholding the sanctity of human life and the fundamental importance of marriage between a man and a woman.

Rory Leishman is a national affairs columnist for the London Free Press in London Ontario. His homepage is www.roryleishman.com