In response to TVO's Studio 2 Dec.16 program.
It's simple - there are no legal gay marriages in Canada. The 7 jurisdictions who have pronounced on this are ultra-vires. They do not have that competence. Even the Supreme Court's views and opinion are non binding. Had they - as the Government wanted them to - ruled that denying same sex couples the right to marry as being illegal, they would themselves have been ultra-vires. They had no option - under our Constitution - but to leave the 4th question unanswered in the circumstance.
Whatever way the Parliament by majority vote decides the issue, will it become the law of the land. And only then. If it's traditional marriage - that's it. No need for a not withstanding clause. It's over until such time as it comes up again in some future vote.
I defy anyone to prove me wrong.
E.Baerg
An Interesting Exchange:
John Ibbitson's - one of the regular panelists on the
show - response to my feed back note to the TVO
-Studio 2 program:
'Proof is a difficult thing to establish, in
constitutional law, but I don't believe
there are compelling grounds to argue that
provincial appellate courts lack the
jurisdictional competence to pronounce on
Charter issues.'
My response to his response:
They certainly have the jurisdictional competence to "pronounce" on Charter issues, but to presume to have the effect and force of law (?) - I don't think so.
Prologue to a dialogue; to ascertaining the truth
about the powers of provincial appellate court
rulings.
Someone once said; war is too important to be left to the generals. Likewise it seems to me that jurisprudence is too important to be left to the politicians and legal experts. They each have their biases and axes to grind. It is the prerogative of "we the people" to exercise our right as citizens - through our elected representatives - to determine the direction we would like to see the country go.
What I am attempting to do, is to ferret out the truth of the matter - unfiltered by extraneous influences bearing upon it. In the words of the P.M. "to get to the bottom of this". The Liberal's strategy seems to be to rush things through with the least amount of public input and/or Official Opposition scrutiny - to question and think things through. I cite as examples - the appointment of the two new Supreme Court Justices; what appears to have been a push by the Government to get the Supreme Court to bring down a quick verdict; and now the unseemly haste to pass the Bill on same-sex marriage. A tactic designed to forestall any indepth public discussion for fear that a consensus might emerge that is not their own.
To counter this rush to enshrine same-sex marriage, before we've had a chance to fully appraise all the ramifications and future consequences of such a drastic move, I deliberately set out in my note to TVO Studio 2, to challenge anyone to prove me wrong in my stated position. Hoping that this might get the ball rolling as to what's what in regard to the Judiciary's role in this. I have engaged in a dialogue with two prominent columnists, who have contributed their elucidations on the topic. But we are not there yet. They haven't knocked the ball out of the ball park - as yet. It still doesn't answer the core question - by what legitimate authority do these provincial appellate courts derive their power to make law? They have given valid explanations as to how they view things from their perspective, and that is good to know. It serves to illuminate the picture further, so as to have a broad overview of all that is involved.
Granted, my view of it may appear as simplistic, although from my standpoint I see it as the truth of it. I will maintain this stance until such time as I am categorically and conclusively proven to be wrong. It sometimes helps to reduce things down to their basic essentials in order to see things for what they are, before the spin meisters get into the act and bend things to their view.
Here then is my dialogue with Ms. Chantal Hebert. Her column Jan.31.
* Same-sex marriage: If and when the bill to expand the definition of marriage is adopted, it will only sanction what is already the practice in much of the country. And even if Parliament failed to pass the bill, the court orders instructing many provinces to perform same-sex marriages would remain valid.
E.B. to C.H.:
On same-sex marriage - (to paraphrase): You say if and when the bill is expanded and adopted - this presumes it to be inevitable. Also, even if Parliament fails to pass the bill, the court orders by provincial courts would remain valid.
I don't follow your logic as to how you arrive at this conclusion. Are the courts - under our constitution - now deemed to have the powers to legislate? If so, by what authority are they empowered to do so? As I understand it, even the Supreme Court's rulings are non binding. All the thinking, wishing and saying so - doesn't make it so.
What the public needs to know and have clarity on is; what exactly is the true position of the law on this. I've always admired your clear headed thinking and inimitable style of expressing yourself succinctly and incisively - but here you have me baffled. Can you enlighten me?
C.H. to E.B.:
On the contrary, the if and when expression leaves open the possibility that it will not be.
E.B. to C.H..
I take your point and I stand corrected. Still, you must admit, that on the face of it, it was a fair assumption.
But it was really the other aspect - the presumption of the courts to make law, that baffles me. This is what I would appreciate having your clarification on. The public has a right to be certain about this. There's a lot of hot air and baffle-gab around this particular issue. You would do us all a great favour if you were to give us a definitive explanation as to how this is possible - in law.
I'm just an ordinary Joe - unsophisticated in matters of state craft - but it seems to me that if the bill is amended as the Conservatives propose, and that amendment is then passed - it becomes part of the original bill. And if the bill is then passed with this amendment attached - traditional marriage then remains the law of the land. I mean how can there then be any legal gay marriages in Canada, if the legal definition of marriage is strictly between a man and a woman. That's it, it's game over - all else is academic. Forget about all this nonsense about a - not withstanding clause. Let the opponents bring all the legal challenges they like - they haven't got a case. That is the real message the Supremes conveyed - it's all up to Parliament. I don't see how they could have done otherwise. If you recall, I once made this very point to you back in Jan. 04.
I repeat, if anyone can prove me wrong - it's the erudite Ms. Chantal. That challenge still stands. Perhaps you can enlist the help of the 134 learn-ed, academic legal experts - who support your position. (I really would like to see them weigh in on this.)
I await your rising to the challenge.
(And rise she did.)
C.H. to E.B.:
When we acquired/accepted the Charter of Rights, we gave the court system the task to examine our laws under the light of the rights listed in the Charter so as to ascertain whether they jibed with each other or if they did not whether the limits some laws put on the exercise of some rights were reasonable in a free democratic society.
In this fashion, over the years, the courts have been called upon to pronounce on Quebec's French-only sign law, Canada's criminal code dispositions as they pertained to abortion or the school rights of French and English-language minorities.
In all of the above cases, the courts called for major adjustments.
In other cases though, they validated the existing practice. Thus, the Supreme Court upheld the right of Catholic school boards in Ontario to refuse employment to divorced teachers, on the basis of the right to freedom of religion.
In the case of civil marriage, the higher courts of most provinces have found that the current definition of marriage, in as much as it is closed to gay couples, is neither constitutional nor reasonable.
The Charter was drafted so that politicians had the last word, if they felt they had the legitimacy to exercise it. Thus, Parliament could override the Charter-related prescriptions on civil marriage by voting the notwithstanding clause of the Constitution, or in effect suspending the equality rights of gay couples for a period of five years.
There would not be enough support in the current Parliament to use the clause and Stephen Harper has said he would not. Legally though it would be the only serious way of maintaining the current definition of marriage.
That is as factual as l can make it.
E.B. to C.H :
Well, that's quite a dissertation - I'm going to have to chew on that. (I'm unaccustomed to such a lengthy response from her - it's usually more like one liners.) Why don't you make it the basis of a column - I'm sure others would appreciate it as well.
C.H. to E.B.:
l may yet end up doing just that.
NO LEGAL NECESSITY FOR A CONSTITUTIONAL
NOTWITHSTANDING CLAUSE
The federal government is under no constitutional obligation to change the definition of marriage - as Bill C-38 attempts to do - according to a legal opinion sent Friday to every MP and Senator by Calgary-based lawyer Gerald Chipeur.
The document's author is Ottawa lawyer Eugene Meehan,one of Canada's most respected constitutional experts. Meehan is a former executive legal officer of the Supreme Court of Canada, a former national president of the Canadian Bar Association, and a former professor at the University of Ottawa and University of Alberta.
Meehan's view contradicts 134 law professors who had warned Opposition Leader Stephen Harper in January that Parliament could not ban homosexual marriage without using the Constitution's notwithstanding clause.
As the National Post reported Friday, Meehan believes that the Supreme Court's answers to the four questions from the government on the constitutionality of redefining marriage make no requirement that Parliament amend the definition.
"There is no reason to believe that the Supreme Court of Canada decision should lead a parliamentarian to conclude that they have no option . . . but to vote for the legislation," Chipeur told the Post.
In an open letter published in the National Post, Chipeur and 29 other lawyers also note that Meehan affirmed that if Parliament were to pass legislation upholding the definition of marriage "on the basis that it would serve the best interests of children," it would not be out of line with previous Supreme Court rulings.
Meehan also rejected the assurances of Prime Minister Paul Martin and Justice Minister Irwin Cotler that C-38 will not infringe upon the right of people of faith to freely exercise their religion. On the contrary, say the lawyers, Meehan's analysis leaves "little doubt" that "provincial governments and others" would use it to undermine their rights.
"It is our view," their letter to the MPs and Senators states, "that your constituents, including religious groups and the members of religious groups, will face expensive and ruinous lawsuits if Bill C-38 becomes law."
(This article by: Focus on the Family)