A rchive Date
[ 20-07-2003 ]
Category
[ International Relations ]
sub-Categoy
[ Canada ]
|
[http://www.canoe.ca/Columnists/mulroney.html
Outside the union
Marriage debate raises Constitution issues
By BEN MULRONEY -- For the Sun
July 20, 2003
The Chretien government has placed another brick in the wall that it hopes will become its legacy to the Canadian people. Barring any unforeseen roadblocks, civic marriages will soon be open to all people, regardless of sexual preference.
But let us be clear on something: The federal government did not lead Canada to this decision, it merely trailed behind a cresting wave of legal pressure.
Jurisdiction after jurisdiction has been calling Canada's marriage laws into question, claiming that they violate the Charter rights of homosexual Canadians. A Liberal government must never be seen as trampling on Pierre Trudeau's Charter, and hence Ottawa's unusually swift action in this matter.
It is obvious that before this law takes effect, there is going to be some collateral damage that will demand attention.
Take Alberta, for example. While Ottawa defines marriage, the provinces are responsible for issuing marriage licences. Alberta Premier Ralph Klein is contemplating using the Constitution's notwithstanding clause in order to opt out of his provincial obligation to issue licences to same-sex couples.
Labelled opportunist
Whether or not Klein has the legal standing to make use of the clause is still up for debate. What is becoming apparent, however, is that the federal government has decided that there are parts of the Constitution it likes more than others.
Klein's critics cite his longstanding opposition to the clause as a reason to label him an opportunist. How can someone who abhors the notwithstanding clause ever use it?
In any political battle, the soldier must be able to use every weapon in his arsenal. By focusing on Klein's dislike of the clause, his detractors would have the people of this country shift their focus away from the real issue, and towards a concern of the past.
The notwithstanding clause has been a burr in the saddle of a great many people since Trudeau stuck it into the Constitution over 20 years ago. But for better or for worse, it is also as integral to our conception of constitutional rights as is the Charter.
For Premier Klein to be chastised because he intends to use it to thwart a Chretien-legacy move is childish and insincere. The Chretien government cannot uphold the importance of respecting the Charter while disparaging the notwithstanding clause in the same breath.
We have got a long way to go before the gay community is accepted as an equal part of society. The Canadian Alliance has promised to force a vote on this law in the House, the Klein affair must be put to rest, and then the religious fallout will no doubt be fierce. I have a hard time believing that the Catholic Church has been waiting anxiously to begin consecrating same-sex marriages.
This isn't over, not by a long shot.
In the interim, it might be interesting to examine the issue of the notwithstanding clause. As one scholar said, it opens the door to "the tyranny of the majority," while others believe it saps yet more power away from an anemic parliament, and shuttles it to a bench of unelected judges.
Yes, a debate on the notwithstanding clause could be a good thing. Unfortunately, that would require a new round of constitutional talks.
But why would we ever do that? The Constitution is perfect, isn't it?
Read Ben Mulroney every Sunday. Contact him at bmulroney@canoemail.com. Letters to the editor should be sent to editor@sunpub.com
 World Fact Book (CIA]
|