Calgary Sun - September 14, 2003

By LINK BYFIELD

I don't envy Opposition leader Stephen Harper his job one bit. Every day he has to deal with brainwashed Real Canadians. And now, just as they were almost starting to like him, he's gone and upset Real Canadians again (i.e. our governing class in Toronto, Montreal and Ottawa) by telling the truth.

Real Canada doesn't like the truth. It prefers mythology - such as the myth that Canada is a functioning democracy with an impartial judiciary. He was commenting last Thursday about the Liberals taking the extraordinary step of trying to pass their new gay marriage law in the Supreme Court before trying to pass it in Parliament. Harper said this is the final play in a long cabinet strategy to use the courts to circumvent democracy on a controversial issue. "They [the government] had the courts do it for them, they put the judges in they wanted, then they failed to appeal, failed to fight the case in court." For this he was widely derided in the East as paranoid, delusional, spiteful, extreme, and (ugh) western.

We might note, however, that all the points Harper made are factual. The federal cabinet actually is asking the courts to legislate this matter ahead of Parliament. It has not appealed the pivotal Ontario marriage case, and is even opposing the right of others to appeal it. It is also a fact that the federal cabinet chooses the judges it wants. True, we don't know exactly how they rank candidates because the process is totally secret. All we know is that (unlike the Canadian people, who are split 50-50 on the issue) judges pretty much unanimously support the homosexual cause.

Consider, for instance, a remarkable event during gay pride week in Toronto. On June 26 there was a private Law Society reception at which gay lawyers and clients purportedly whooped it up with the very same judges who had just ruled in favour of gay marriage. Amid toasting and applause, the judges were photographed embracing grinning gay activists. This event was flaunted on a gay web site (www.equalmarriage.ca) but later removed. Fortunately for history, the group REAL Women had already saved it, and it's in their July/August newsmagazine Reality (www.realwomenca.com). They also attached everything on the website to their July 28 application to appeal the Ontario decision to the Supreme Court of Canada. If the gay website is to be believed, the party-goers were a who's who of the Ontario judiciary. They included Roy McMurtry, chief justice of the Ontario Court of Appeal, and former Ontario attorney-general; Heather Smith, chief justice of the Ontario Superior Court; Harry LaForme, another Superior Court judge who endorsed the gay marriage claim, along with James MacPherson of the Court of Appeal.

A lesbian lawyer allegedly agreed at great length with Claire L'Heureux Dube, a former Supreme Court justice, how wonderful it is that in Canada the judges now do what Parliament won't. Chief Justice McMurtry allegedly declared, "Claire L'Heureux Dube advocated gay rights in Mossop and added dignity to equality in Egan." (Note that he says her job is to "advocate," not judge.) To which Claire modestly replied it was a team effort: "Courts have been at the forefront of this [gay] evolution, not to say revolution." All this was supposed to be private.

It's important (even in Real Canada) to preserve the myth of judicial impartiality. Sure enough, Chief Justice Beverley McLachlin was in the same city three days later piously assuring the Canadian Club: "Unlike politicians, judges do not have agendas." No, they have just pre-empted Canadian democracy since 1995. No agenda there.

This was not a minor indiscretion by one judge. It's an ugly anti-democratic attitude that pervades the entire eastern political and legal system from the top down. And if you criticize it, as Harper had the guts to do, you are ridiculed as a paranoid western loony. Stick to your guns, Steve.

In the end, we'll have to find provincial solutions to federal problems like this one. Meanwhile, it's good to have a few principled people out there in that cesspool still willing to fight for democracy.

Link Byfield is chairman of the Citizens Centre for Freedom and Democracy.