Egale Canada press release

January 8, 2006

Egale asks Harper to clarify murky position on notwithstanding clause

Ottawa, January 8, 2006: In an article published in the Toronto Star on January 5, professors Jerome Black and Bruce Hicks wrote that Mr. Harper’s promise not to use the notwithstanding clause to take away equal marriage may be temporary, and by the time the Supreme Court rules he could wriggle out of his unclear promise.

Professors Black and Hicks focused on the fact that Mr. Harper said he will not use the notwithstanding clause to override Charter protection “on this issue” and that he may in the future try to characterize such use as being on another issue, perhaps saying the issue is whether Parliament or the courts should have the final word.

“Egale calls on Stephen Harper to clarify his murky position,” said Laurie Arron, Director of Advocacy. “We ask Mr. Harper to clarify that he will never use the notwithstanding clause to take away the right of same-sex couples to civil marriage, including when his heterosexual-only marriage law is found to be unconstitutional by the courts. We ask Mr. Harper to make clear that he will not try to justify using the notwithstanding clause as being about Parliament having the final word or some other issue.”

Courts have repeatedly and consistently ruled that it violates the Charter of Rights and Freedoms to
exclude same-sex couples from civil marriage. As a result, legal experts agree any new legislation taking away same-sex couples’ right to marry would ultimately be struck down by the Supreme Court, leaving the notwithstanding clause as the only way to effectively deny same-sex couples access to civil marriage. (See letter signed by 134 constitutional law professors at http://www.law.utoronto.ca/samesexletter.html.)

“Without the notwithstanding clause, Mr. Harper is simply dooming the country to a pointless, politically-inspired debate to re-open an issue most Canadians believe is settled,” said Gilles Marchildon, Executive Director of Egale. “If Mr. Harper did re-open the issue and did manage to pass such legislation, we’d have to go through three levels of court before getting a Supreme Court decision striking down his legislation. It’s pointless to put Canada through that.”

A survey released November 29 by CBC and Environics found that two-thirds of Canadians say the issue of same-sex marriage is settled and should not be addressed again.

Egale Canada advances equality and justice for LGBT people, and their families, across Canada. Founded in 1986, Egale’s work includes political action, legal interventions and public education and awareness.

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Toronto Star article available at: http://www.thestar.com/NASApp/cs/ContentServer?pagename=thestar/Layout/Article_Type1&c=Article&cid=1136415009182&call_pageid=968256290204&col=968350116795

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Advancing equality and justice for lesbian, gay, bisexual, and trans-identified people and their families across Canada