PUBLICATION:
National
Post
DATE:
2005.01.31
EDITION:
National
SECTION:
Comment
PAGE:
A10
BYLINE:
Vic Toews
SOURCE:
National Post
NOTE:
Vic Toews is the justice critic for the Conservative Party
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Defining
marriage is a job for Parliament
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In
1982,
The
Charter changed the way the provinces and the federal Parliament could exercise
their existing legislative authority. Such authority was now bounded by freedoms
enumerated in the Charter, including freedom of religion, expression and
association, and the equality rights contained in Section 15. Responsibility for
determining whether laws run afoul of these Charter principles was assigned to
the courts.
In
the discussions that led up to the adoption of the Charter, a number of premiers
expressed concern about the possibility that the courts could interpret and
enforce the Charter in a manner inconsistent with the intent behind the
document. If the courts, rather than the legislative bodies, were to be supreme
in determining the scope of the rights that Canadians would enjoy, how could
court decisions that were perceived to be wrong be corrected?
As
a result of this concern, Section 33, the so-called "notwithstanding
clause," was included in the Charter. The notwithstanding clause can be
used by a provincial legislature or the federal Parliament to override a court
decision and thereby uphold a law deemed to have been unconstitutional, for a
period of up to five years.
A
controversy has now arisen over whether the notwithstanding clause is required
to protect the traditional definition of marriage, which has been challenged by
a recent series of provincial court decisions. In a reference case launched last
fall, the federal government asked the Supreme Court of Canada whether
restricting marriage to one man and one woman is consistent with the Charter.
The Court's refusal to answer this question has left the status of the lower
court rulings in question.
The
position of the leader of the Conservative Party of Canada, Stephen Harper, is
that resort to the notwithstanding clause is not necessary to protect the
traditional definition of marriage. By failing to address the issue, and sending
it back to Parliament, the Supreme Court has sent the message that the
definition of marriage should be left to federal legislators.
This
makes sense: The Constitution Act of 1867 conferred constitutional jurisdiction
in this area on Parliament. And the powers granted under the Charter of Rights
and Freedoms do not provide the courts with the constitutional basis to force
Parliament to redefine marriage.
Given
the Supreme Court's actions, and the fact that the definition of marriage
considered and amended by lower courts was based on common law rather than
statutory provisions, there is no constitutional impediment preventing
Parliament from taking the issue back into its own hands and adopting a
legislated definition of marriage that corresponds to the traditional common-law
definition. Such legislation would not implicate a Charter violation. And so,
contrary to the protestations of some gay-marriage advocates, there would be no
need to resort to the notwithstanding clause.
The
Supreme Court has effectively stated that this important social policy matter is
one that should remain within the jurisdiction of Parliament. This is consistent
with the intent of the Charter's drafters, as made clear by legislators during
the debates leading up to its adoption.
The question of whether the
notwithstanding clause is an appropriate exercise of Parliament's jurisdiction
in this context is an issue that Canadians can debate as an abstract matter. But
for practical purposes, the issue is not relevant.
NOTE:
Vic Toews, Q.C. is a constitutional lawyer and former
Attorney General and Minister of Justice for the