Answer: we did. We, the people of Canada, through our elected representatives: not only Parliament, but nine provincial legislatures, who debated, drafted and passed what became the Constitution Act, 1982, including the Charter of Rights and Freedoms, from which this passage was taken. No bill before or since has achieved the same degree of legislative consensus in this fractious country. If the Constitution is the supreme law of the land, it is only because it has the highest democratic credentials.

It was not the Supreme Court of Canada that decreed that governments must not discriminate against certain classes of citizens, as they have in the past, as they do to this day. We did. And to show that we meant it, we put it in writing. We did not let our legislators off with a warning; we did not leave the matter to their discretion.

We made it a law. Indeed, we placed such importance on this particular law that we insisted it could not be changed without something approaching the high degree of consensus with which it was first enacted.

Is not quite true to say, in the words of former Chief Justice Brian Dickson, that Canada changed from a system of "parliamentary supremacy" to one of "constitutional supremacy." Canadian law has always been rooted in the supremacy of the Constitution. Prior to 1982, if a law, whether of Parliament or the provincial legislatures, was found to be in conflict with the British North America Act, and in particular with the division of powers, it was ruled ultra vires. And the body with the authority to make such declarations was, and had been for many years, the Supreme Court of Canada. Who gave them that authority? We did, by act of Parliament.

Neither constitutional government nor judicial review, in short, was an invention of the Charter. The 1982 constitution marked a departure in only two major respects. One, the provincial governments, by ratifying the constitution, joined Parliament in formally recognizing the authority of the Supreme Court. And two, the people were let in on the game. Before the Charter, only governments were protected from legislation that encroached upon their rightful prerogatives. Now the citizens had the same protection.

And all of this -- constitution, charter, court, rights -- was our doing.

What, then, was the Supreme Court up to when it ruled last week that Alberta must extend the protection of its human rights laws to homosexuals?

Was it usurping the authority of the legislature? Was it substituting its own values for those of the people's elected representatives? No. It was applying the law. Somebody has to. If we left it to the legislatures, we would be defeating the whole purpose of the Charter, which was, remember, to limit their discretion.

In 1982, we said that every individual "has the right to equal protection and equal benefit of the law without discrimination." Now plainly we did not mean any kind of discrimination: we would not say that the law should be evenhanded, for example, between those who obey it and those who do not.

So we were inevitably required to say what types of discrimination we would prohibit. We listed certain traditional bases of discrimination like race or sex, "in particular." But we did not say these were the only grounds: the list was non-exclusive.

Here is where things get tricky. The Charter does not explicitly say that sexual orientation is a prohibited ground of discrimination. And Alberta's legislation does not explicitly say that it isn't. Both are questions of interpretation. And on both counts the court's reasoning seems sound.

In deciding whether to "read in" a particular ground, the court looks at, among other things, whether such discrimination is a common event. A law that discriminated against, say, redheads would probably not run afoul of the Charter, since redheads are not commonly the victims of discrimination. But gays and lesbians evidently are.

Does Alberta's anti-discrimination law, by its conspicuous exclusion of sexual orientation as a prohibited ground, amount to discrimination against homosexuals? The law's defenders would say that it leaves out lots of possible grounds, so homosexuals were not singled out. But that is only to say that they were not the only victims of discrimination. Others can bring their own cases.

Does the court's decision amount to using the Charter to regulate private conduct -- which it was expressly not intended to do? Provincial human rights laws, after all, forbid discrimination by private firms and individuals, as well as governments. But neither the court nor the Charter could compel a province to pass such legislation. If a province declined to prohibit discrimination on any grounds, the Charter could say nothing. It is only if, having once decided to pass a law forbidding discrimination, a government unjustly discriminates between citizens in its application that the Charter comes into play.

These are, of course, matters of interpretation. What is not open to interpretation is whether the court has the authority to make such decisions.

We gave it that right.