NEWSPAPER COLUMNS
 ¶ Most Recent
¶ Miscellany
|
SUNDAY SPECTATOR
January 8, 2006
Swingers
Kim Campbell (remember her?) once said that an election campaign is no time to discuss public policy. She said this during an election campaign, and it’s among the reasons why, 12 years later, we have trouble remembering who she was. Yet she may have been prognostic. Today, in the media, among the politicians, and in what passes for respectable society, I find that public policy goes almost undiscussed -- election or no election. The reason is that it has ceased to belong in the public domain.To a degree that would seem extraordinary, to a Canadian only a generation ago, the major issues determining the future of our society are decided exclusively by the courts. As we saw over the issue of “same-sex marriage” last year, Parliament’s role is reduced to something like that of a constitutional monarch. Its function is to provide a timely rubber stamp on major decisions our courts have made. It is widely assumed that some sort of constitutional crisis would be provoked, should Parliament stand in the way of a court decision, by invoking the “notwithstanding clause” in the 1982 Charter of Rights, or by attempting some other act of defiance. Paul Martin made this very plain, in the first lap of the current election campaign, when he chided the opposition leader for proposing so much as a free vote on same-sex marriage in the House of Commons. He said that a man ought not to be running for the office of prime minister who isn’t willing to uphold the Charter. But the issue was not the Charter, per se, no clause in which had been challenged. Nor had our Supreme Court read anything new into that Charter, yet. It was merely understood that they probably would, if they were asked a clear enough question. Therefore, any attempt by Parliament to rule on the matter could be interpreted as lèse majesté. We had further confirmation of our new constitutional order just before Christmas, when the most significant question of public policy to arise since the beginning of the election campaign was briefly aired. This was the far-reaching decision of the Supreme Court to legalize group fornication in “swingers clubs”. The significance of the decision was spelled out in the majority opinion, written by Chief Justice Beverly McLachlin. She declared a new principle of Canadian law, that would obviate all previous principles. Henceforth, the argument that an act could be considered criminal because it did moral harm to individual persons, or to society as a whole -- would be inadmissible. “Actual” harm to persons would have to be shown. And since the most obvious example of this -- the spread of sexual infections from the public acceptance of libertine behaviour -- was pointedly overlooked, the concept of physical harm was itself made vague. The decision was a three days’ wonder. Its delivery just before Christmas was perhaps designed to make it so. None of our leading candidates for public office have touched it with a barge pole. A Google-search reveals that it is still being discussed on only the most obscure websites. It is inconceivable that a majority of Canadians would have voted for such legislation, or even a majority of Liberal MPs. And yet we concede the matter is now out of the people’s hands. Consider: this is a decision that will be invoked by lawyers to stop any municipality in Canada from preventing a “swingers club”, or other lewd establishment, from opening in any neighbourhood at all. It makes arranging public orgies into a conventional commercial proposition. It will put knowledge of this in reach of our children, and make them eligible for legal participation from the age of consent, which is fourteen. And henceforth, no one has a right to do anything about that. Leading far beyond this, it effectively declares that there is no such thing as a moral order, for the law to acknowledge. For all moral questions are reduced, in the Court’s majority opinion, to subjective questions of “taste”. “Actual” harm alone is the standard. Yet in the end, what is an objection to physical injury but an assertion of mere personal taste? In their dissent, Justices Bastarache and LeBel wrote, "We are convinced that this new approach strips of all relevance the social values that the Canadian community as a whole believes should be protected." What Canadian community? What values do they have? Under our new constitutional order, no one is asking for their opinion. David Warren
© Ottawa Citizen
|
Top