Canadian social change is court driven

  • February 1, 2011
OTTAWA - Whether it is marriage, conscience rights, parental rights to educate their children or hot-button issues like prostitution, the real battles are taking place in the courts rather than in Parliament, say those on the front lines.

Catholic Civil Rights League president Phil Horgan said that changes to social policy are no longer coming from the legislative framework where politicians persuade their fellow citizens in elections and then get the support of other legislators to pass changes into law.

When the state does enter into areas of social policy — like Quebec’s Ethics and Religious Culture course and the recent related prohibition on religious instruction, prayers or songs in day cares run by religious groups — it has become almost impossible to combat that kind of secularism in legislatures.

“Now it is required for the citizen to go to court to seek an exemption or relief from these mandates,” Horgan said.

“Courts have become the forum for decisions on public policy,” said constitutional lawyer Gerald Chipeur, who is representing the Christian Legal Fellowship (CLF) in the polygamy reference now before the British Columbia Supreme Court. “If the Christian voice is not there in court, then it will not be heard at all.”

When Horgan was in law school in the early days of the Charter of Rights and Freedoms, students were taught there is a dialogue between the courts and legislatures. But now it is “less of a dialogue and more of a dictation.”

The rights league is often the only Catholic group intervening in court cases, said executive director Joanne McGarry, though the Canadian Conference of Catholic Bishops has in the past and recently jointly intervened with the Evangelical Fellowship of Canada (EFC) in Quebec’s challenge to the Assisted Human Reproduction Act.

Chipeur said he was disappointed the bishops did not intervene in the polygamy case because if the court decides the prohibition against polygamy is unconstitutional on religious freedom grounds, “Canada will become a destination for polygamous communities around the world.”

He said the CLF is arguing for both religious freedom and for the preservation of the common good. The state must accept religious belief and practice on its face as long as it is an honest belief held in good faith, he said.

The experts testifying in the reference, which will hear closing arguments in April, have shown polygamy harms women, children and society as a whole, he said. He compared it to slavery of a gender instead of a race.

REAL Women of Canada is also involved in the polygamy reference. Though its national vice president Gwen Landolt, a former Crown prosecutor, is Catholic, REAL Women is a pro-life, pro-family organization that represents a wide spectrum of socially conservative women.

McGarry said the league wanted to be involved in the polygamy reference but could not afford the cost. 

“It’s unfortunate that we can’t be everywhere.”

It was the only Catholic group intervening in the Ontario prostitution case that struck down Canada’s prohibitions against pimping (living off the avails of prostitution) and soliciting, along with REAL Women and the CLF. She said the joint-intervention was the only one “that spoke to the common morality of Canadians.”

The league will be participating in another crucial court battle before the Supreme Court of Canada this spring involving a group of parents from Drummondville, Que., who want the right to exempt their children from the province’s mandatory Ethics and Religious Culture course.

It will intervene with other groups, including the Association of Quebec Catholic Parents and an organization representing Coptic Christians.

The EFC and the CLF were also involved in the Saskatchewan reference regarding the conscience rights of marriage commissioners. The Saskatchewan Court of Appeal told the province that neither of its two options that would have accommodated the rights of marriage commissioners to refuse to marry same-sex couples on conscientious or religious grounds was constitutional.

Though the Canadian bishops did not intervene in the case, Regina Archbishop Daniel Bohan responded in January in a pastoral letter: “It is the belief and teaching of the Catholic Church that in everything we do as a people, we are bound to follow our conscience in order that we may come to God, the end and purpose of life.”

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