Press Release

January 17, 2006

104 Law Profs ask Harper for Supreme Court reference

Passage of unconstitutional law would lead to legal swamp

Ottawa—Yesterday 104 law professors from across Canada wrote an open letter to Stephen Harper saying that his plan to re-open the equal marriage debate will lead to “legal confusion, a lack of uniformity, and unnecessary, protracted and costly litigation.” This would happen because his proposed legislation goes against clear and consistent legal precedents and is “almost certainly unconstitutional.” The law professors called on Mr. Harper to refer any legislation he puts forward to the Supreme Court to get the Court’s opinion on its constitutionality, and to drop his plans to move forward if the Court rules the legislation unconstitutional.

“If Stephen Harper goes ahead with his plan to re-open the divisive equal marriage debate, it will lead Canada into a legal swamp,” said Laurie Arron, a lawyer and Director of Advocacy of Egale. “Legal experts recognize this. We support their call for a Supreme Court reference and agree that it’s the only responsible thing for Mr. Harper to do, if he insists on rolling back equality.”

“Mr. Harper insists the Supreme Court will defer to Parliament,” added Mr. Arron. “That assumption is ridiculous and should be tested before Mr. Harper throws this country into a very messy legal state. Mr. Harper should put his money where his mouth is.”

“Without the notwithstanding clause, any legislation taking away equal marriage will be declared constitutionally invalid by the courts,” added Mr. Arron. “If Mr. Harper did re-open the issue and did manage to pass such legislation without first getting a Supreme Court opinion, we’d have to go through three levels of court before to get to the Supreme Court. Then it would strike down his legislation. It’s pointless to put Canada through that.”

“There’s no point to re-opening the issue when Mr. Harper has pledged not to do what it would take to reach his misguided goal of taking away our right to marry,” said Gilles Marchildon, Executive Director of Egale.

A survey released November 29 by CBC and Environics found that two-thirds of Canadians say the issue of same-sex marriage is settled and should not be addressed again.

Egale Canada advances equality and justice for LGBT people, and their families, across Canada. Founded in 1986, Egale’s work includes political action, legal interventions and public education and awareness.

For more information:
Laurie Arron, 416 839-7178
Gilles Marchildon, 613 230-1043 (o), 613 864-1133 (c)

Link: Open Letter to The Hon. Stephen Harper from Law Professors Regarding Re-Opening Same-Sex Marriage

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Canada's LGBT human rights organization: advancing equality, diversity, education, and justice.