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January 12, 2006
By Gilles Marchildon, Executive Director of Egale Canada
The two promises that would lead to chaos
The current polling on voter intentions in this federal election suggests that the Conservative Party might win the most seats.
Conservative leader Stephen Harper has promised, if he becomes Prime Minister, to introduce another vote on the definition of marriage, even though Parliament decisively dealt with this matter this past summer.
Harper would like Canada to return to the days when marriage was exclusively between a man and a woman. This would mean that same-sex marriages would no longer be allowed, although marriages already performed would continue to be recognized.
The Conservative leader suggests that taking away marriages from same-sex couples only requires a vote in Parliament. As pointed out by Constitutional experts across the country, however, the only legitimate way to effectively halt same-sex marriages would be to use the notwithstanding clause contained in the Charter of Rights and Freedoms (see letter signed by 134 constitutional law professors at http://tinyurl.com/d3xkf).
But Harper made a second promise during the first round of leaders’ debate, saying he would not use the notwithstanding clause.
At first glance, it would seem that he painted himself in a corner. After all, if Harper does not intend to use the prescribed legal way to stop same-sex marriage, the only result of a motion in Parliament is to appease his political base.
An in-depth analysis, however, reveals a more worrisome outcome for anyone who supports equality - or who just wants our federal government to move on to other pressing matters.
In an article published by the Toronto Star on January 5, professors Jerome Black and Bruce Hicks focus on the Harper promise not to use the notwithstanding clause (see http://tinyurl.com/e3p6j). They point out that his commitment is vague, that he has only said that he wouldn’t use the clause to override Charter protection “on this issue.” Which “issue” does he mean - the re-opening of the debate or the actual decision on same-sex marriage?
Black and Hicks write that: “The implication is clear. Harper’s promise to not use the notwithstanding clause is temporary. He will specifically not use it in the free vote to repeal same-sex marriage that will take place immediately following the election.”
In other words, after the initial vote took place, where there would be no reference to the notwithstanding clause, the latter could be invoked in the future, after a legal challenge was heard by the Supreme Court of Canada and a decision had reversed the vote in Parliament.
The professors undertake a detailed analysis of how MPs would vote, based on their research. They conclude that “it seems likely that the Commons would repeal same-sex marriage.”
This should concern all Canadians, not only those who support same-sex marriage. Two-thirds of Canadians (as per a CBC and Environics poll) say the issue of same-sex marriage is settled and we should move on.
Harper’s re-opening of the issue would create legal chaos and trigger legal challenges, leading us back before the courts. This is a pointless waste of time and resources.
Egale Canada ©2011