Reading In

Today Andrew Coyne gives us a history lesson. His purpose seems to be to defend the Charter against critics who see it as not rooted in Canadian history. Most of what he says I wouldn't challenge because I'm not a historian or a scholar. But when he comes to the end of his piece, he says:

Has that expanded the powers of the courts?(. . . ) A happier example was the "persons case," an important advance for women's rights achieved by the simple expedient of redefining who was included in the category of "persons" eligible for Senate appointments under section 24 of the BNA Act. Today we would call that "reading in."

Coyne is arguing that a decision to recognize women as persons for the purpose of Section 24 of the BNA Act, is analogous to the Supreme Court's decision add a new category of subgroup in need of protections listed in Section 15 of the Charter. But I don't think the argument holds up.

'Person' is a word that has always encompassed both genders. The court recognized a historic injustice when it noted that women had always been ‘persons in matters of pains and penalties, but not in matters of rights and privileges’. It rewrote no definition; it simply acknowledged the full reality of the existing definition.

The section of the BNA Act that summarizes the qualifications of a Senator uses the word 'Person' and uses the (until recently) non-gender-specific pronoun 'he'. None of the other criteria specifically excludes women, as women were allowed to be landowners, they could be residents of a province and they could accumulate money. Since women were already 'persons' for the purpose of punishment, no justification could be made for excluding them for purpose of privilege. Women were not added to the existing definition of 'person' in the 'Persons Case' -- it was simply established that they were always there and no one up until then had acknowledged it.

The inclusion of women might not have been on the minds of the authors of the BNA Act, but their exclusion could have been assured by the simple addition of the word 'male' in front of 'persons'.

Section 15 of the Charter is not so vague. Not only does it specifically list criteria under the equality provisions, the framers debated the inclusion of sexual orientation and intentionally left it out. (That was Trudeau and the gang for all you liberals).

Coyne questions those who criticize the Charter by invoking the Magna Carta and other historic documents:

If it's really important legal innovations you want, you have to go back to the advent of the written law, and the rise of an independent judiciary to interpret it. Much criticism of the Charter, and the constraints it places upon the discretion of policy makers, seems in fact to be a complaint about the written law in general. Fair enough: It is a radical idea that those who govern us should not be allowed to govern by fiat, but should have to put it in writing. Or at least, it was radical, circa 1215, though I rather thought Magna Carta had settled the question -- a written document, if memory serves, as was the Bill of Rights of 1688, the Act of Settlement, the Royal Proclamation of 1763 and all the other legal documents that are a part of our constitutional heritage.

By adding sexual orientation to Section 15, the Supreme Court was not simply remedying an historic injustice, or correcting a misinterpretation, or correcting the misapplication of a statute. It was governing by fiat. Apparently Coyne finds that okay since they are neither elected nor policy makers. I don't get it.

Coyne suggests that the Charter is in the tradition of Canada's historic freeness. He points to recent accusations of judicial activism by the Supremes:

To be sure, the common law is as much a part of the British inheritance. But if it's "judge-made law" you're on about, it's an odd point to raise. The series of legal rulings in recent years upholding gay marriage, in particular, sometimes held up as the height of judical impudence, overturned no statutory definition of marriage, but rather another judge's ruling dating from before Confederation (and from another country to boot).

Marriage was a word like mother. It required no 'legal' definition. It required no statute. Historic tradition and centuries of precident gave us our understanding of the word. Perhaps, given time, it might have evolved to include forms beyond the one man/one woman version we held here, but the courts of the land were impatient. They imposed a new meaning of the institution and in doing so, they have restricted the freedoms of those unready to embrace this expanded version. Unlike 'person' which both in law and in practice has meant to include both genders, the only universal element of marriage has always been the opposite gender requirement. Other elements vary culture to culture -- number of people, age, familial relation, even consent -- but the opposite gender requirement held firm until the 21st century. So, although no statute was overturned, let's not pretend same-sex marriage was as simple as filling in a blank.

No harm of course, because no one has to believe anything they don't want to -- that is, until they do.

The Charter pits the rights of individuals to freedom of speech, conscience and religion against the equality rights groups listed or read-in to Section 15. With regard to same-sex marriage:

You have the right to believe what you want, so long as you don't act on it.
You have the right to say what you want, but not in public.
You have the right to express yourself, but not if it hurts someone's feelings.

The 'Persons Case' might have challenged the ideas held about a woman's place in society, but it didn't prevent anyone from expressing their opinion. It didn't stifle debate. The role of women in government and in society grew from there, but not because people were afraid to challenge the prevailing laws -- but because women proved themselves capable and deserving.

The rulings regarding marriage, as vague as they were, were not intended to open a closed door for marginalized people, but to create a new door which would make the old one obsolete. You can argue that it's a good thing, but please don't pretend that it won't eventually infringe on the rights and freedoms of those who choose to disagree with the change to marriage.

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