The righteous power of judicial activism

By James Keller

“Judicial activism” has become something of a dirty phrase in this country lately, particularly within the realm of the political (not to mention the religious) right.

Members of Parliament, from Canadian Alliance leaders to Liberal backbenchers, cried foul after the Ontario Superior Court effectively rewrote the legal definition of marriage over the summer. Those cries became mudslinging after Prime Minister Jean Chretien announced his government would let the ruling stand (by not appealing the decision) and take the court’s advice and draft legislation allowing same-sex couples to marry.

To be fair, this decision was a complete about face for the Liberal Party, who only four years ago unanimously passed legislation formally restricting marriage to opposite-sex couples (before then, this definition existed only in common law). At the very least, Chretien and his government should answer to this sudden change in policy.

This does not, however, mean the government’s decision to respect the Ontario court’s ruling amounts to hijacking the Canadian parliamentary system, as some have suggested. In fact, what occurred over the summer–a debate that is months if not years away from a resolution–is the system at work. More specifically, this is the Canadian Charter of Rights and Freedoms fulfilling its original purpose: to protect ideas of equality and freedom in Canada.

While the court should never substitute for an elected government, when parliament fails to act in line with the country’s existing human rights laws, it is the court’s duty to step in and act. Judges aren’t subject to the whim of opinion polls or the loud protests of a vocal and angered minority. The courts only answer to one thing: the law. And in this case, the answer was crystal clear.

MPs opposing this type of judiciary are partly correct. This issue still requires debate in the House of Commons to hammer out specifics, like whether churches can choose who to marry. But by strongly favouring this change, and by making such marriages immediately legal in Ontario (and now British Columbia), the courts have sent a strong message to Ottawa: government must respect equality as outlined in the Charter, or the courts will act instead.

If there is reason to complain here, it is because Parliament took so long to address the matter in the first place. If the federal government had acted according to what the courts have ruled time and time again, Parliament could have voted on the issue in on its own turf.

Sadly, it didn’t.

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