Federal Court Rejects Application to Review Morgentaler Order of Canada
By Patrick B. Craine
TORONTO, Ontario, November 27, 2009 (LifeSiteNews.com) - A Federal Court ruling this week has said that the Governor General's highly controversial induction of Canada's "father of abortion," Henry Morgentaler, into the Order of Canada last summer cannot be legally contested.
In a decision released this week, Order-inductee Frank Chauvin's application for a federal court review of the award was rejected on the grounds that it is "plain and obvious that [it] cannot succeed."
The appointment of Morgentaler, Canada's leading abortionist, has been acknowledged as the most factious by far in the history of the Order, sparking a nationwide protest. At least nine previous Order of Canada inductees returned the prestigious honor, or had it returned on their behalf, and over 100 Members of Parliament declared their objection. Polls indicated that well over half of Canadians opposed the award, and a petition signed by 30,000 was submitted to the Governor General.
Mr. Chauvin, a retired Windsor police detective, received the Order in 1987 for his work in support of Haitian orphan girls. He brought the legal challenge against the Order's Advisory Council in July 2008. He takes issue with the secretive process by which the Council recommended Morgentaler, and states that the award was directly contrary to the high purpose of the Order of Canada to unite Canadians behind truly meritorious recipients.
Mr. Chauvin pointed to reports that the Council altered its protocol in order to successfully nominate Morgentaler. Though the proceedings are confidential, the 11-member Council reportedly allowed a majority vote in the Morgentaler nomination rather than the customary requirement of consensus.
Additionally Chauvin argues that the Council's chair, Chief Justice Beverley McLachlin, should have recused herself from voting on the nomination, given that Morgentaler is currently before the New Brunswick Court of Queen's Bench seeking public funding for his private, for-profit abortion facility in that province.
In this week's written decision, Federal Court Prothonotary Kevin Aalto determined that Mr. Chauvin's application could not succeed on several grounds.
Firstly, Aalto determined that Chauvin does not have standing to bring the case, either in support of his personal interests or as a matter of public interest. Additionally, the judge said that Chauvin's objection to the Council's recommendation is moot, because the Governor General has already accepted the recommendation and bestowed the award.
Further, he said, the decision to award Morgentaler is protected by royal prerogative. "The Governor General's decision, pursuant to Royal Prerogative, is not subject to review," he wrote. "It is therefore arguable that Her Excellency's Advisory Council is not subject to review."
"I have been quoted in the media as intending to return my award," said Mr. Chauvin in response to the news of the decision. "I may yet do so, but I first wanted Canadians to have a chance to take a close look at what can happen when an Advisory Council abandons a consensus model and uses the award to advance a highly divisive view, in this case the effective promotion of the tragedy of abortion in Canada."
In a press release today, the Catholic Civil Rights League (CCRL) stated that "Morgentaler's nomination effectively served to politicize further the Canadian honours system by taking sides on a matter of ongoing political, religious and social controversy."
The CCRL noted that the ruling effectively prevents any review of the activities of the Advisory Council, whose deliberations continue to be strictly confidential.
"The impact of the current decision effectively 'immunizes' any possible challenge of an Order of Canada conferred by the Governor-General, and perhaps the deliberations of the Advisory Council itself," stated CCRL President Philip Horgan. "The Court's ruling prevented even the disclosure of the records of the Advisory Council."
While Morgentaler's appointment to the Order was only announced on July 1, 2008, the court case revealed that Morgentaler was actually made a member of the Order on April 10, 2008.
"It appears that the only possible objection that could have been raised to the process would have been by a dissenting member of the Advisory Council itself," commented Horgan. "However, as those deliberations remain shrouded in secrecy, Canadians may never learn what happened on this or on previous occasions."
No decision has yet been made with regard to appealing the decision.
LifeSiteNews' Feature on The Henry Morgentaler Order of Canada Controversy
See related LifeSiteNews.com coverage:
Order of Canada Member Launches Legal Challenge to Morgentaler Award
Judicial Council Dismisses Complaint against Chief Justice over Morgentaler Award