I awoke this morning to news reports that the Ontario Court of Appeal had upheld a lower court ruling that the common law definition of marriage in Canada is not defensible under the Canadian Charter of Rights and Freedoms. Furthermore, the court said that the Federal Governments’ more recent, and hasty, declaration, was also discriminatory. And, unlike BC and Quebec, where similar judgements have recently been made, this court chose not to give the Federal Government a grace period to implement a new law, and instead ordered Toronto City Hall to immediately begin marrying gay people.
This Ottawa Citizen story is probably the most balanced coverage of the whole event.
Predictably, gay and lesbian people celebrated. Also, predictably, those in favour of traditional marriages were furious. Alberta’s Ralph Klein will use the Charter’s infamous notwithstanding clause to opt out, which, for me personally, is most unpalatable. The Charter either applies to us all, or it shouldn’t be there.
There are those, particularly on the far right, who complain that the courts are "making law", and that this issue should be decided by our elected officials, and not the courts. I agree that the issue should be decided by elected officials. In this particular case, the Ontario court, by redefining marriage as "the voluntary union for life of two persons to the exclusion of all others" has stepped beyond what I would consider its reasonable mandate in this circumstance. I don’t question whether there is a legal precedent for the Court to do so, but I do feel that the Court has been more activist than necessary. There is a national parliamentary review process underway right now to find out Canadians’ opinions on this topic. The court could have taken the more politically palatable step of aligning itself with BC and Quebec and waited for that outcome.
Notwithstanding that position, the equal application of marriage laws to same-sex couples is a right guaranteed under the Charter. There are those that argue that the courts are imposing their vision of the country on Canada, but nothing could be further from the truth. We are living the vision of Canada that was created by Pierre Trudeau and Jean Chretien in 1982 when the Charter of Rights and Freedoms became law. The challenge for those wishing to preserve marriage for opposite sex couples is to find a way to legally do so within the framework of the Charter. I do not see how that can be done, nor do I think it politically wise, or morally defensible to do so. But… if politicians choose to take this on, that is what must be done.