In an address to The Canadian Club of Toronto (Verbatim, September), Chief Justice Beverley McLachlin waded deep into the political arena to defend the Supreme Court of Canada from the charge that it has invoked the Canadian Charter of Rights and Freedoms as a pretence for seizing legislative supremacy.

“Viewed from the outside,” the chief justice said, “deciding Charter cases may seem like a political task.” That, she insisted is incorrect: “The reality comes down to this: Parliament and the legislatures are the supreme arbitrators of the social course of the nation, subject only to the constraints imposed by the constitution and its traditions.”

Ironically, this declaration by our chief justice came just days after the unanimous Halpern ruling by a threejudge panel of the Ontario Court of Appeal that both defied the express will of Parliament and overturned the traditional legal rule going back centuries that defined marriage as the voluntary union for life of a man and a woman. In an attempt to justify this manifestly political, judge-made revolution in the law, the Court cited the alleged equality rights of homosexuals in section 15 of the Charter.

Yet there is no reference to sexual orientation in section 15 or anywhere else in the Charter. The omission was deliberate. The legislators who enacted the Charter explicitly refused to include equality rights for homosexuals. Regardless, in Egan v. Canada, in 1995, the Supreme Court of Canada undertook, with the connivance of the Liberal attorney-general of Canada, to read sexual orientation into section. 15. And on the basis of this judicial amendment of the law, the Ontario Court of Appeal discovered a right to marriage for same-sex couples in the Constitution.

“Unlike politicians, judges do not have agendas,” McLachlin avowed in her Toronto speech. Why, then, just a few days after Halpern, did a bevy of judges led by Ontario Chief Justice Roy McMurtry show up at the annual Pride Week Reception and Forum convened by the Law Society of Upper Canada to receive the accolades of gay rights activists for changing the marriage law?

McLachlin claims that the, “notion that Parliamentary democracy resides only in majority rule is both false and dangerous…It offers no protection against the tyranny of the majority and it overlooks the need to accommodate and validate minoritarian views essential to long-term democratic stability.”

Here we come to the nub of the dispute: McLachlin subscribes to the authoritarian view that unelected judges are better qualified than elected legislators not only to interpret and uphold the laws, but also to enact and amend laws affecting minority rights. What can justify such arrogance? Is the application of the abstract rights of the Charter to specific cases such as “gay marriage” subject to just one true interpretation that only our judicial masters, in their infinite wisdom, can grasp.

Jeremy Waldron, Maurice and Hilda Friedman Professor of Law at Columbia University, has addressed this issue in Law and Disagreement (Oxford: Clarendon Press, 1999)— a brilliant treatise that ought to be required reading in every department of law and political science. Waldron persuasively argues that “It is not a case of there being some of us who are in possession of the truth about rights— a truth which our opponents wilfully or irrationally fail to acknowledge because they are blinded by ignorance, prejudice or interest. The issues that rights implicate are much too complicated to permit or require that sort of explanation.”

Given that people of good faith can reasonably disagree over the nature and implications of rights, how should these disputes be resolved? Waldron is a democrat. He insists that these disagreements should be resolved through the legislative process by elected representatives of the people, not a, “nine man junta clad in black robes and surrounded by law clerks.”

Paul Martin, our prime minister-inwaiting disagrees. He says he is bound to ignore what he understands as a Catholic to be true about “gay marriage” and follow the dictates of the judiciary.

Suppose Abraham Lincoln had taken the same attitude. Following the Dred Scott ruling, he might have said to the American people: “I personally believe that slavery is wrong and that the Missouri Compromise was a reasonable means of curbing this evil, but a majority of the United States Supreme Court has found differently and I am bound to respect the judgment of the Court.”

Of course, Lincoln said no such thing. In his first inaugural address, he maintained: “The candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers…”

In Canada, we, the people, have ceased to be our own rulers. As the “gay marriage” fiasco makes evident, the majority of our elected representatives have acquiesced to the usurpation of supreme legislative power by the Supreme Court of Canada under the colour of interpreting the Charter.