Skip to comments.The Loss of Democracy
Posted on 07/23/2003 3:04:22 AM PDT by lethbridge_east
Two weeks ago, Tuesday July 8th to be exact, the British Columbia Court of Appeal reversed an earlier decision and held that gay marriages could take place immediately in the Province of British Columbia. Its original decision delayed the recognition of gay marriage until July 2004 to give governments an opportunity to amend laws to comply with its interpretation of the constitution, more specifically its interpretation of the Charter of Rights and Freedoms contained in our constitution.
Reason given for the BC court reversal was that there was now an inequity in law between BC and Ontario, as Ontario had ordered immediate marriage of gays.
There is now legal inequity between the provinces of British Columbia and Ontario on one hand and Alberta, Manitoba, Newfoundland and Labrador, New Brunswick, Nova Scotia, Prince Edward Island, Quebec and Saskatchewan on the other.
The BC court reversal had more to do with the decision of our federal government not to refer the Ontario Court of Appeal ruling on gay marriage to the Supreme Court of Canada. The failure of our Parliament to challenge the powers of the courts to amend our laws and thus uphold our democratic right to governance by elected representatives left a power vacuum quickly filled by the BC court.
Our constitution sets out very clearly that Parliament has the exclusive authority to make laws for a number of subjects including marriage and divorce while Legislatures have exclusive authorities to make laws on another list of subjects including the solemnization of marriage. Our courts have no constitutional authority to make law.
We started down this slippery slope with a Supreme Court of Canada decision to write in sexual orientation as a prohibited discrimination under Section 15 of the Charter. Section 15 of the Charter read:
15. (1) 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.
Parliament had debated including sexual orientation under Section 15, and chose not to as the term was considered too ambiguous, lacking the clarity needed to ensure that the law did not have unintended ramifications.
The case referred to the Supreme Court (Egan VS Canada) involved the definition of spouse under the Old Age Security Act (OASA). Partners in a same-sex relationship were denied the benefits available to partners in a marriage or common-law relationship.
The Supreme Court held that the Old Age Security Act was discriminatory and that the partners in a same-sex relationship should be entitled to the same benefits as married or common-law partners.
The problem arises through the court decision to read in a change rather than to allow Parliament to amend legislation to comply with the courts interpretation. Reading in a change to the Old Age Security Act is one thing; reading in a change to the Charter and constitution is quite another and strikes at fundamental democracy.
Courts reading in a change to the law bypassed Parliament and usurped its exclusive authority to write law. The court reading in a change of law also bypassed our right to have laws written by elected and accountable representatives. We can hold our elected representatives accountable at the ballot box, but cannot hold appointed judges accountable for decision we do not like.
The reading in of a change to the Charter effectively constituted a change to our constitution without meeting the requirements set out therein for constitutional change. There is good reason for requiring that seven provinces representing half of the population agree to a constitutional change. We want to ensure that the majority of citizens governed under our constitution are in favour of a change.
Our governments, federal and provincial, have let us down by allowing the courts to attack fundamental democracy without exercising their exclusive right to enact the laws under which we shall live.
I do not condone discrimination based on prohibited grounds or discrimination against members of the gay community. The exclusive right of Parliament and our Legislatures to enact laws carries with it the responsibility to ensure that laws written are inclusive and do not favour one citizen over another.
Our courts are right to point out inequities in law that require a remedy. However, the remedy is the responsibility of our elected representatives, not the courts. While many MPs and MLAs would love to escape the burden of weighing the demands of minorities against the benefits to society as a whole, they cannot do so without undermining our constitution and democracy.