Liberals renew attack on Tories' same-sex stance

JIM BROWN
CANADIAN PRESS

Jan. 9, 2006. 07:03 PM

OTTAWA � The federal Liberals are reviving the same-sex marriage issue, claiming a Conservative government would try to pack the Supreme Court of Canada in an effort to overturn the right of gays and lesbians to wed.

The Liberals are circulating comments from a 2003 interview with Vic Toews on a Christian radio program in the United States in which the Tory justice critic accused "radical liberal judges" of usurping parliamentary authority on same-sex marriage.

Toews also appeared to advocate use of the so-called notwithstanding clause of the Constitution to override court decisions favourable to same-sex unions.

"This is being disrespectful of the independence of the judiciary," Justice Minister Irwin Cotler contended Monday.

He accused the Tories of wanting to "change the judges and act as if there's no Constitution and no Charter of Rights and no rule of law in this country."

The Conservatives retorted that the Liberals, who are struggling to jump-start their flagging election campaign, were distorting their position and trying to divert public attention from the scandal-plagued Grit record in government.

In the interview, Toews told his American audience that "the courts are subverting the institution of Parliament, the democratic voice in this country."

He went on to denounce "these radical liberal judges who have their own social agenda" and who are appointed by the government without the same kind of public scrutiny and legislative oversight that apply in the U.S.

Turning specifically to the issue of same-sex marriage, Toews observed that "Parliament has the ultimate tool and it's called the notwithstanding clause."

"If the Supreme Court continues on that radical agenda, we need to push the federal government to use this constitutional mechanism, to ensure that the courts understand that they are not to interfere with social policy matters and (are to) stay within their realm of jurisdictional interpretation."

The comments were delivered immediately after an Ontario Court of Appeal ruling that legalized gay marriage in Canada's most populous province.

The remark about the need to "push the government" on the matter referred to the majority Liberal government of then-prime minister Jean Chrétien.

In the current election campaign, Conservative Leader Stephen Harper has promised that, if he forms a government, he will hold a free vote in the Commons on restoring the traditional definition of marriage as a heterosexual institution.

But he has tried to defuse the issue by saying he wouldn't override the Charter of Rights.

In an interview Monday, Toews insisted that he now shares that point of view.

"Basically this isn't a story," he said.  "Mr. Harper has clearly said he wouldn't use the notwithstanding clause on the marriage issue.  It's a position that I support."

Toews, considered a good bet to become justice minister if his party takes power, rejected claims that he would politicize the judiciary and appoint only judges who share his view of the law.

"The point is to get the best-qualified candidates," he said.  "The idea that we have some kind of a plan to do what (the Liberals) suggest is simply wrong."

Cotler, however, maintained the notion of packing the Supreme Court with right-leaning judges was implicit in the 2003 interview with Concerned Women Today, a U.S.-based Christian radio ministry.

"I wonder what Vic Toews has in mind for the kind of people he would like to appoint," said Cotler.

"We should not be thinking in terms of replacing alleged radical liberal judges with radical conservative judges.  Our concern should be to protect the independence of the judiciary."

There is currently one vacancy on the nine-member Supreme Court � the seat vacated by former justice John Major who retired in December.

The oldest of the remaining eight judges is Justice Morris Fish, who at 68 doesn't reach the mandatory retirement age for another seven years.

Judges have been known to take early retirement, but sources close to the court say none of the present eight is considering such a move.

Under those circumstances, said Heather MacIvor, a political scientist at the University of Windsor, it's unlikely a minority Conservative government could pack the top court with new right-wing judges even if it wanted to.

"I'm a Charter fanatic and I'm not losing any sleep over this," said MacIvor.

She dismissed the Liberal attack as "a desperate attempt to paint the Conservatives as scary, scary, scary."

Toews sat on an advisory panel of MPs from all parties, former judges, lawyers and lay people appointed by Cotler last fall to come up with a short list of three candidates to fill Major's post.

The list of names � which remain confidential � was handed to the justice minister just before the election was called in late November.

Toews said it's not certain what the Tories would do if they take power, but his preference would be to choose from the list already drawn up, rather than start over from scratch.