Right, and as noted by matt_mcl, the elected MPs (and provincial MPPs/MLAs/etc.) are the ones who made the law by passing the Constitution Act, which not only says
"Equality Rights
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. "
but also says
“**Enforcement **
Enforcement of guaranteed rights and freedoms
24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.”
Our elected MPs passed a law that not only requires all people to be treated equally under the law (including but not limited to specific instances), but also requires that the courts deal with any failure to do so and to provide the appropriate remedy. The courts in the SSM issue have acted exactly as directed by the elected MPs.
Note also that Section 15 above was specifically delayed from coming into force for 3 years to give the elected politicians time to amend any laws that didn’t conform to the new rights, a process which our elected representatives proceeded to generally ignore. Any politician who jumps up at this point and fulminates about “judge-made law” is either inexcusably butt-ignorant about the subject or wilfully misrepresenting the issues to score political points and pander to his electorate.
On a related subject, I expect that the “force churches to marry gays” issue is also deliberate misrepresentation. Churches and other religious organizations, unlike the provincial government, have no legal obligation to marry anyone - they can refuse to solemnize matrimony for anyone who doesn’t meet the church’s own requirements, and signing the civil marriage documents is a voluntary act subsequent to the religious ceremony. Churches do not provide civil marriage services to the general public, and I would be astonished if the SSC ever thought it could change this.
Have to disagree with you here. Most jurisdictions reviewed their laws after 1982 and passed Charter compliance acts, to eliminate obvious inconsistencies with the Charter. A lot of work went into the projects. I can vouch for that personally, since I had a marginal involvement in one such project as a summer student. Can’t give you any cites for the amending acts since I’m not at work and they tend not to be on-line (as they pre-date the internet).
Your criticism on this point only makes sense if in 1982, all legislators could foresee every development that would occurr under the Charter in the courts. But that’s simply not a fair criticism. The Charter was a completely new development, and litigation and interpretation of laws is a dynamic process. It was reasonably easy in 1982 to pick out obvious inconsistencies in statutes (for example, I think some provinces still barred women from sitting on juries. Those types of discriminatory clauses were promptly fixed before s. 15 came into force.)
But there were lots of other areas where you could only put forward your best guess as to how the courts would proceed, and therefore it would be difficult to ensure your laws would be Charter compliant.
Take the case of same-sex marriage. Your criticism of government inactivity in the period between 1982 and 1985 on this point only makes sense if there was a wide-spread anticipation that:
a) the courts would adopt the approach of including analogous grounds of discrimination in s. 15 (an “open-ended” approach), rather than holding that only those specifically listed were protected (a “closed” aproach)
b)relidifind that sexual orientation was an analogous ground of di
Have to disagree with you here. Most jurisdictions reviewed their laws after 1982 and passed Charter compliance acts, to eliminate obvious inconsistencies with the Charter. A lot of work went into the projects. I can vouch for that personally, since I had a marginal involvement in one such project as a summer student. Can’t give you any cites for the amending acts since I’m not at work and they tend not to be on-line (as they pre-date the internet), but can do so at a later time if anyone wants them.
Your criticism on this point only makes sense if in 1982, all legislators could foresee every development that would occurr under the Charter in the courts. But that’s simply not a fair criticism. The Charter was a completely new development, and litigation and interpretation of laws is a dynamic process. It was reasonably easy in 1982 to pick out obvious inconsistencies in statutes (for example, I think some provinces still barred women from sitting on juries. Those types of discriminatory clauses were promptly fixed before s. 15 came into force.)
But there were lots of other areas where you could only put forward your best guess as to how the courts would proceed, and therefore it would be difficult to ensure your laws would be Charter compliant.
Take the case of same-sex marriage. Your criticism of government inactivity in the period between 1982 and 1985 on this point only makes sense if there was a wide-spread anticipation that:
(a) the courts would adopt the approach of including analogous grounds of discrimination in s. 15 (an “open-ended” approach), rather than holding that only those specifically listed were protected (a “closed” aproach)
b) using the proposed analogous grounds approach, the courts would find that sexual orientation was an analogous ground of discrimination, even though Parliament had voted down an attempt to add sexual orientation to s. 15 when the Charter was being drafted;
c) the courts would find that the traditional definition of marriage discriminates on the basis of sexual orientation and that gays and lesbians should have the legal right to marry persons of the same-sex.
On (a), I recall in 1982 there was a general consensus that s. 15 was open-ended, but there was certainly a minority view that section 15 should be closed. Alternatively, some argued that even if section 15 were open-ended,the courts should be very reluctant to recognise new grounds for discrimination, or that if the courts did, those additional grounds should be reviewed on less strict standards, similar to the approach taken in the U.S. under the 14th Amendment. In 1982, you could not say with certainty that the courts would accept that they could take an expansive approach to the list of prohibited grounds, and that they would apply the same standards of review to all grounds, whether enumerated or analogous. These may seem technical points, but in retrospect, they were initial points of constitutional doctrine that were crucial to the decisions that ultimately permitted same-sex marriage.
On (b), there was a lot of speculation on whether the courts would take an “original intent” approach to the Charter, relying on some strands of American constitutional doctrine, or stick with the progressive interpretation approach that had become traditional in Canadian constitutional law since the Persons Case that held that women were “persons” for the purpose of being called to the Senate. If the courts took an “original intent” approach, then the fact that “sexual orientation” had been voted down in the early drafts of the Charter might well have meant that even under an analogous grounds approach to s. 15, sexual orientation could not be an analogous ground. Alternatively, if they took the traditional Canadian approach, of interpreting constituional provisions in light of developments in Canadian society, that early vote would not be very important and the language of s. 15 could permit sexual orientation to be included. This key point wasn’t decided until the latter part of 1985 (i.e. - several months after s. 15 came into force), in Re B.C. Motor Vehicles Act, when the Supreme Court indicated that it would not take an “originalist” approach and would rely primarily on the text. Again, this may seem an abstruse point of constitutional doctrine, but again in retrospect, it was a crucial step along the way.
Finally, on (c) - I cannot recall any commentator who confidently predicted on April 17, 1982, that the new Charter would result in same-sex marriage. Frankly, I think that anyone who made such a prediction would have been dismissed as a loony-tune. Canadian society simply wasn’t ready for that development then, and neither were the court. It took about 10 years of litigation, on different lesser points (such as pensions and benefits for same-sex couples), before long-seeing academics and lawyers started to comment that trends in the case law, if continued, potentially might lead to an argument in favour of same-sex marriage. It then took about another eight years of actual litigation before that happened.
So, my bottom line - it’s very easy in hind-sight to criticize politicians for not taking action because “it’s obvious” - but it’s not easy at the time to know how the litigation process, which is dynamic, will develop.
To take a new example: How many people reading this thread think that the Charter will lead to polygamy, as some have predicted? Within ten years, say? And if you do think that, how certain are you? willing to bet $10? willing to bet your car on it? Your house? If you’re not willing to bet the house on it, would you nonetheless expect the politicians in Ottawa to amend the laws right now, to permit polygamous marriage, because “it’s obvious” the courts will rule that way eventually? :dubious: