Wednesday, June 08, 2005

But will they use the notwithstanding clause to protect the amendments?

Section 15 and the commenters on this post make some interesting observations on the amendments being considered for Bill C-38, in an effort to keep the Liberal backbench happy.

As a number of people are observing, many of these amendments will likely crumble before a court challenge, particularly the one about justices of the peace being allowed to refuse to solemnize same-sex marriages. This seems to echo some of the reasons underlying the fall of Canada's abortion legislation. As far as I know, Canadian law has to provide for procedural equity in terms of access to the law. If there is only one JP in a remote district of Canada and he/she refuses to marry a gay couple, then the law is not being implemented equitably. The courts will probably strike this section down, and I'm surprised that MPs don't recognize this - perhaps they will try to protect this section with the notwithstanding clause!

Likewise, issues of renting out church halls are probably going to fail to pass legal muster as well. I feel somewhat conflicted about this particular issue. In principle, I do believe that any service or good being sold to the public should be done so without distinction as to the purchaser's race, sexual orientation, gender, etc., I do question the motives of a couple who would try to get married in a property owned by a group that disapproves of your marriage. It smacks of political grandstanding, and I would hope that this particular section, if adopted as an amendment, is not challenged, at least for a few years. To a certain extent, a bit of live and let live is needed if a society is to function. Religious institutions and groups are unlikely to change their views on gay marriage if a confrontational/legalistic approach is taken. A bit of breathing room on this issue might allow for some "sober second thought", rather than knee-jerk defensive behaviour. And while the argument might be made that in a small community, the church/legion hall is the only game in town, I think it is more likely that the first legal challenge would come from a big city, as it recently was in Vancouver, over a Knights of Columbus Hall.

Like Section 15, I can live with these amendments in the interests of getting C-38 passed. They can always be struck down by the courts later. Perhaps I'm biased though, as my currently legal same-sex marriage is still not recognized in New Brunswick, where I will likely be living next year.

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3 Comments:

At 9:04 am, Blogger Mark Francis said...

"f there is only one JP in a remote district of Canada and he/she refuses to marry a gay couple, then the law is not being implemented equitably. The courts will probably strike this section down, and I'm surprised that MPs don't recognize this - perhaps they will try to protect this section with the notwithstanding clause!"

Possible, but unlikely.

I agree that the JP matter is just wrong: it's not even a religious marriage for goodness sake.

The only ethical way around this, and one which MAY be satisfactory to the courts is to ensure a SSM-friendly JP is available through some process.

re halls: Churches have to learn that when they make something available to the public, the public is what they get.

The marriage issue is more important right now then the remaining details.

Getting this bill passed with the amendments is a 90% victory. A few battles lost, but the war is won!

It's enough to prove over the next decade that this isn't going to hurt society, but improve it.

 
At 10:05 pm, Blogger Mike said...

I second everything mark has said.
I also very strongly doubt that PM the PM, who so readily used the "they will use the nothwithstanding clause" club against the CPC so well in the last election, would turn around and use it himself. Not when he is back up in the polls. That would be political suicide.

As for MPs knowing this stuff, well I got news for you - very few MPs have any kind of legal training so they actually don't know this stuff. That's right. The people who "make" our laws don't know about our laws or how our legal system works. Cuz they hire lawyers to write the laws and then they get to argue about it in committee and then vote in parliament.

So let's not tell them, eh?

 
At 5:33 am, Blogger Matt said...

I wasn't actually serious about there being any possibility that PM the PM would use the notwithstanding clause - that was just the musings of my ironic mind.

It does, however, always boggle my mind that Parliamentarians don't seem to have a clue how the Charter works, even 23 years into its operation. But heck, if their ignorance gets SSM through the House, so much the better!

 

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