The Reminder is making its archives back to 2003 available on our website. Please note that, due to technical limitations, archive articles are presented without the usual formatting.
Notwithstanding Gay Rights A Right Corner article last August dealt with the gay marriage issue and its opponents. At that time homosexual unions had been declared legal in B.C. and Ontario thanks to the interpretation of the law by a judge in each province, and the issue was brought before Parliament. The commentary marveled at the successful lobbying efforts of what really is a small minority of the population, with significant church opposition in Canada. Since then, the Chretien government proposed a bill including same-sex couples in the definition of marriage, saw it barely pass on a free vote, and quickly referred it to the Supreme Court for a "review." The Liberals were relieved to have it referred as they did not want it to become an election issue. This sidestepping tactic worked and the only mention of the issue was in attacks by the left-wing media on Stephen Harper's beliefs in traditional marriage. A mid-September ruling by a Manitoba judge, not opposed but encouraged by the NDP government who did not challenge the court case, meant that Manitoba became the fifth jurisdiction to allow same-sex marriages. The judge, following some previous rulings, declared that excluding homosexuals from marriage violates their rights in the Charter of Rights and Freedoms. Shortly after, Nova Scotia followed as the sixth locale to allow these weddings. There is still considerable opposition to the rulings. The Pope called in Canada's Ambassador to the Vatican and told him to tell Paul Martin that these marriages are illegal and immoral as "marriage is between a man and a woman." Catholic leaders in Manitoba immediately spoke out against unions that can't reproduce. They claim marriage's importance to children and the community will be seriously undermined. Of course, Chretien's bill and any of the rulings do not require churches to perform such ceremonies, but Manitoba's 600 marriage commissioners have been ordered to conduct the unions, causing the resignation of more than one Commissioner. Some church people also claim that Justice Yard's ruling may be expanded to allow polygamy or worse, but his definition change was to be "reformulated to mean a voluntary union for life of two persons at the exclusion of all others." In an interview, one NDP MLA claimed the decision was a court matter not a political matter. This of course is patently untrue as the definition of marriage is under federal jurisdiction with the provinces responsible for marriage licences and marriage registration. In Canada, as in Britain, Parliament is supreme in their areas and the provinces in theirs. The courts interpret the laws but Parliament and the Legislatures can change the laws to alter the interpretation, and of course there is the "Notwithstanding Clause." What does this mean? After defeating the hapless government of Joe Clark in 1980, Prime Minister Trudeau decided to repatriate Canada's constitution and bring in a "Charter of Rights and Freedoms" similar to the U.S. Bill of Rights. The Constitutional Conferences of 1980-81 were wild times indeed in Canadian confrontational politics. The proposals were redrafted five times and included provisions for Aboriginal rights, sexual equality and equal rights for the handicapped. The PC proposal to entrench property rights, led by ex-PM Joe Clark, was outrightly rejected by Trudeau, who was only supported by the Premiers of Ontario and New Brunswick. The others, known as the "Gang of Eight" were hostile to federal encroachment on their jurisdiction. They were led by the Premiers of Quebec, Alberta and Manitoba, with the "gang" filing challenges in court. They had a major victory in one Supreme Court ruling that amendments to reduce provincial powers must be with a consensus of the provinces. This led to the inclusion of a "non-obstante" clause or "derogatory" clause, popularly called the "Notwithstanding Clause." Which premier led the fight for this clause? The answer later on in this column. This clause for fundamental rights, legal and equality rights means that provincial legislatures and Parliament can declare an exemption from any parts of the Charter, so that the court rulings can be overcome or not apply. The Notwithstanding Clause has been used sparingly, but is there to be declared. Alberta Premier Klein said he will invoke the clause to not allow homosexual marriages in his province. Also when the Supreme Court rules on the marriage definition (no doubt about how it will rule), Parliament must meet and confirm or reject the definition. It could also invoke the Notwithstanding Clause, but won't. It must be emphasized that the objective of the Charter of Rights and Freedoms is to protect citizens from the state and minorities from majorities. In the period 1984-1999, Canada's Supreme Court ruled 360 times on Charter challenges, raising the criticism that the Charter has caused turmoil and litigation, providing a good income for a few lawyers. The new Constitution incorporated John Diefenbaker's Bill of Rights, really a parliamentary document and not a real part of the Constitution. Who led the charge for the Notwithstanding Clause? It was none other than our own Sterling Rufus "Red" Lyon, Manitoba's Premier from 1977-1981. A "boy wonder" in Duff Roblin's cabinet, Lyon had a long and illustrious career. Retiring soon after his defeat by Howard Paulley, Sterling was appointed a Judge of The Manitoba Court of Appeal by Brian Mulroney and served until his second retirement. It is generally agreed that no Lyon would mean no Notwithstanding Clause.
