Tuesday, February 01, 2005

Apparantly this U of T Professor called in sick the day they handed out the Crystal Balls and Magic 8 Balls

(via Vitor)

'Notwithstanding' not needed on marriage

In their open letter to Mr. Harper, the legal experts assert that the traditional definition of marriage is unconstitutional. If that were indeed the case, Parliament could not enact a law preventing same-sex couples from marrying except by invoking the notwithstanding clause.
However, law professors and deans do not get to decide whether the laws of this country meet the requirements of the Charter. Courts do. True, the appeal courts of seven provinces and the Yukon have declared that the common-law definition of marriage as a union of one man and one woman violates the Charter.

However, Mr. Harper is correct to point out that the judicially-declared unconstitutionality of the common-law definition of marriage does not entail the unconstitutionality of parliamentary legislation affirming the same definition.

This is so because, in R. v. Swain, the Supreme Court of Canada said that, where a common-law rule is challenged, the court will not show the same deference to the policy of the rule as it will when legislation is at issue, since no question of respect for the democratic will arises. For all we know, therefore, courts may uphold heterosexual-only marriage as a reasonable limit on the right against discrimination when the restriction comes from a democratic body.

Of course, the betting odds lie heavily against such an eventuality, but the legal experts claimed to be stating the law, not predicting judicial behaviour. It is true, as professor Sujit Choudhry says, that the Quebec Court of Appeal struck down a legislated restriction of marriage to heterosexual couples, but it goes without saying that the Quebec court cannot decide for the whole country. Accordingly, the constitutionality of federal legislation reaffirming the common-law definition of marriage is still an open question.

....

But if that is true, then the notwithstanding clause should be invoked by Parliament only after the Supreme Court has ruled on the constitutionality of a law. And neither it, nor any provincial court outside Quebec has yet ruled on whether democratic legislation restricting marriage to heterosexual couples is valid.

Alan Brudner is a law professor at the University of Toronto.

I respect this guy for comming forward and setting the record straight. Of course I've argued much the same thing both here and on Blogs Canada, but this guy has an llb and llm for that matter so he's somewhat more informed and credible on the issue. Hopefully that clarifies the already mudied partisan waters.



1 Comments:

At 4:11 PM, Blogger John the Mad said...

"But if that is true, then the notwithstanding clause should be invoked by Parliament only after the Supreme Court has ruled on the constitutionality of a law. And neither it, nor any provincial court outside Quebec has yet ruled on whether democratic legislation restricting marriage to heterosexual couples is valid."

With all due respect to Alan Brudner, that is not the case. There is ample evidence to indicate which way the pollen from the "living tree" of the Charter is blowing. Parliament is well within its democratic and constitutional rights to circumscribe in advance that any contrary view of the unelected and unaccountable judiciary is not going to be countenanced.

Having said that, I think Professor Brudner is giving good advice(if I understand him correctly). Let Parliament legislate the heretofore common law definition of marriage and only use the notwithstanding clause if it is overturned by the Supreme Court.

Ultimately, the constitution gives the lawmaking power to the elected branch and it is better for our democracy if this law is made by the elected and accountable branch of government (though I want a referendum to give them guidance on this matter.)

 

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