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SUNDAY SPECTATOR
June 22, 2003
Till death do us part
The struggle for "gay marriage" is over in Canada. It was over before it started; and while I weighed into the business of homosexual "rights" in December from another angle -- getting an unpleasant duty over with before Christmas -- I didn't have the stomach for a secular political battle that was unwinnable. For in my assessment no argument no matter how unanswerable could have made the slightest difference in a "debate" that never occurred. The decision to allow persons other than "a man and a woman" to marry was supported by the usual prolix amateur-hour riff of a judgment on "equality rights" in this case from the Court of Appeal for Ontario -- unworthy of rebuttal for it simply ignored opposing arguments and any inconvenient implications in law. It did not even bother to distinguish corporate from individual persons in rewriting the common law. Yet for all its huge consequences to our lives and morals it was made in the way all important decisions are now made in Canada. A provincial court is asked to rule on a test case that has been organized by the left-liberal legal establishment to perfectly suit its needs. This court then takes the bait overturning centuries of organic judicial and legislative development in a single stroke. The federal government -- which is to say the Liberal Party of Canada -- pretends it will appeal this while looking at the polls. If the coast is clear they drop the idea and announce a surrender immediately. If it isn't they proceed to the Supreme Court of Canada with an appeal that is bound to lose -- given a high bench stacked with left-liberal law-school mediocrities -- thus taking the rest of the wind out of the sails of any conservative opposition. Meanwhile they themselves and the progressive media beat a continuous drum roll over dissident voices declaring the latest stunt to be an "inevitable" part of the "evolution of society" and slandering all opponents as scary dark. We now have poll results to show that Canadians back "gay marriage" by a fair margin in most regions. (There was a radical shift over the past few years from massive opposition everywhere.) Look back over the polls and you find a series of dubiously-phrased poll questions. The usual trick is to ask the key headline-getting question right after an invisible no-headline one. In this case: "Do you think homosexuals should have equal rights with heterosexuals in Canada?" The respondent is hard-pressed to answer "no" to that and then feels he will be contradicting himself if he says "no" to homosexual marriage a second later. In this jury-rigging way an illusion is created of democracy at work. Whereas no one ever spent more than a moment thinking about the issue as he would feel bound to do if there were a proper election or referendum. This is the "glib" in my portmanteau word gliberalism : results are obtained by keeping public debate on the airhead level. Laws and the public morals they help sustain built over centuries of painful trial and error can be subverted and inverted in a trice of public inattention. The whole idea of a responsible government is that it must answer to the public will -- something deeper than the latest poll results. The courts in such a system do not make law but apply it. For even a court creating a precedent must found that precedent in principles previously established. Parliament alone is the legitimate source of legal innovations for that is where a governing party will stand or fall on what it does and where future governing parties may correct a disastrous mistake. Quite terrible corruption follows from the loss of that clear principle -- when governments decide they haven't the guts to make hard decisions and leave them all to be made by the courts. Still life goes on for very few single irreversible decisions have the power to demolish the political order. They only do incidental cumulative damage. Eventually however weakened by one hit after another the political order does come down. Let me explain how this must happen in Canada a country with an unrevolutionary people but with a constitution that now engulfs it in perpetual revolution. This was the genius of Trudeau's "patriation" of the British North America Act in 1982. He got his Charter of Rights and Freedoms embedded in it -- by the British Parliament since it couldn't be done here. He also embedded an amendment formula that requires the complete support of the federal and all provincial governments for the duration of three years to make any change no matter how inconsequential. The "three years" was the ingenious part -- at least one of those governments must itself change in that time. Therefore -- as Meech Lake proved -- the Canadian constitution became unamendable but with Trudeau's Charter now on board. In order to change any part of it one must now overturn the whole thing. In the case of Meech Lake the specific measures could be killed by just one member talking out the clock in the Manitoba legislature -- even after all ten premiers and prime minister had agreed and held their agreement for the required three years: a stupendous and unrepeatable achievement of pure negotiation no matter what you thought of the Meech Lake agreement itself. The Reform/Alliance opposition have never fully got this: that ANY constitutional proposal will go the way of Meech Lake. Their talk about e.g. Senate reform is thus completely aery-faery. It can't be done so long as Prince Edward Island is willing to stand even for a moment in the way (and P.E.I. is not the only province that ever had a vested interest in a status quo). It is thanks to this unamendable 1982 constitution that the courts now rule Canada. It took them more than a decade to discover how much power Trudeau's Charter had given them and taken away from Parliament; but they did finally figure it out and are now driving an endless revolutionary agenda from Canada's madrasas -- our radical law schools. Some of us warned this would happen back in 1982. The cart of history rolled over us. Yes Canada is going to hell in a handcart. But not just any handcart. It is the Charter of Rights and Freedoms pulled by the ghost of Pierre Elliot Trudeau. David Warren
© Ottawa Citizen
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