OTTAWA - Jean Chretien helped engineer the Charter of Rights and Freedoms, but he wasn't prepared for the way the courts used it to overturn something he'd always taken for granted -- the definition of marriage as a union of man and woman.
In an interview approaching the 25th anniversary of the Charter, Chretien said he was taken aback by a series of judicial rulings in 2003 -- his last full year as Liberal prime minister -- that put a stamp of legal approval on gay and lesbian weddings.
"I was caught by surprise. At the time I was 69 years old, you know, and this way of living was not very (much) a part of my culture.''
Chretien said it wasn't that he didn't think gay and lesbian relationships didn't deserve some kind of official recognition -- the cultural shock for him was that the courts rejected the idea of creating a separate category, commonly known as civil unions, for same-sex couples.
"Nobody objected basically to having a contract between the partners, there was no problem with that. It was when they used the word marriage, that got (to) rubbing people on the wrong side, including me . . . . The courts said you have to call it marriage."
Four years after the issue exploded on to the political stage, Chretien appears to have made his peace with the semantic controversy that once bothered him so much.
"I had to deal with it,'' he said with a smile and a shrug. "I survived.''
One thing he never considered, he said, was invoking the notwithstanding clause -- the constitutional provision that would have allowed Parliament to override the views of the courts.
And he pointed out, with an obvious note of satisfaction, that Conservative Prime Minister Stephen Harper -- who once mused about using the override power to preserve the traditional definition of marriage -- eventually backed away from that position.
"He had to,'' Chretien said. "It's the power of the charter. This is the power of the people.''
Not that Chretien can't conceive of other situations in which the country's legislators might be justified in overruling the courts. For example, he said, what if judges were to rule that hate literature or child pornography couldn't be banned because that would violate the principle of free speech?
"I think that a government would be entitled to say notwithstanding that decision, we don't want to have hate literature or child pornography.''
That scenario is hypothetical in the extreme, since the Supreme Court has in fact upheld federal legislation that outlaws both hate-mongering and child porn -- although in the latter case, the court said Parliament must leave room for a legitimate defence of artistic merit.
On same-sex marriage, Chretien sought the views of the high court before introducing a bill to legalize gay marriage. He also faced down political dissent from his own caucus on the issue, although credit for final passage of the legislation must go to his successor, Paul Martin, who shepherded it through Parliament in 2005.
Whatever his initial misgivings on the matter, Chretien has long since accepted the verdict of the courts as a fait accompli. And he has no patience with the complaint, often voiced by Harper, that judges are using the Charter to usurp the rightful role of elected MPs.
"When you write the laws, sometimes you're surprised at the way the courts interpret the laws. But that's why they are there.''
He has even less sympathy for Harper's recent declaration that he wants to find judges who share his Tory government's law-and-order agenda.
From a practical standpoint, Chretien said, it does little good to impose an ideological litmus test on would-be judges, since once they're appointed they're beyond government control anyway.
"Some guys will tell you what you want to hear, and after that they will do what they want to do.''
Beyond that, Chretien argued that it's just not proper for any government to quiz candidates for the bench on their political or social views.
"Are you in favour of abortion, yes or no; are you in favour of capital punishment, yes or no . . . I never asked those questions. The test is: are they good judges?"
