PUBLICATION:          National Post

DATE:                         2005.01.31

EDITION:                    National

SECTION:                  Comment

PAGE:                         A10

BYLINE:                     Vic Toews

SOURCE:                   National Post

NOTE:                        Vic Toews is the justice critic for the Conservative Party

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Defining marriage is a job for Parliament

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In 1982, Canada 's legal system was fundamentally changed by the adoption of the Charter of Rights and Freedoms. Before that time, Parliament and the provinces, acting pursuant to the jurisdiction granted under the British North America Act of 1867, were legislatively supreme. Although the courts did have the authority to strike down legislation, their right to do so extended only to situations in which a particular legislature strayed into the jurisdiction assigned to another.

The Charter changed the way the provinces and the federal Parliament could exercise their existing legislative authority. Such authority was now bounded by freedoms enumerated in the Charter, including freedom of religion, expression and association, and the equality rights contained in Section 15. Responsibility for determining whether laws run afoul of these Charter principles was assigned to the courts.

In the discussions that led up to the adoption of the Charter, a number of premiers expressed concern about the possibility that the courts could interpret and enforce the Charter in a manner inconsistent with the intent behind the document. If the courts, rather than the legislative bodies, were to be supreme in determining the scope of the rights that Canadians would enjoy, how could court decisions that were perceived to be wrong be corrected?

As a result of this concern, Section 33, the so-called "notwithstanding clause," was included in the Charter. The notwithstanding clause can be used by a provincial legislature or the federal Parliament to override a court decision and thereby uphold a law deemed to have been unconstitutional, for a period of up to five years.

A controversy has now arisen over whether the notwithstanding clause is required to protect the traditional definition of marriage, which has been challenged by a recent series of provincial court decisions. In a reference case launched last fall, the federal government asked the Supreme Court of Canada whether restricting marriage to one man and one woman is consistent with the Charter. The Court's refusal to answer this question has left the status of the lower court rulings in question.

The position of the leader of the Conservative Party of Canada, Stephen Harper, is that resort to the notwithstanding clause is not necessary to protect the traditional definition of marriage. By failing to address the issue, and sending it back to Parliament, the Supreme Court has sent the message that the definition of marriage should be left to federal legislators.

This makes sense: The Constitution Act of 1867 conferred constitutional jurisdiction in this area on Parliament. And the powers granted under the Charter of Rights and Freedoms do not provide the courts with the constitutional basis to force Parliament to redefine marriage.

Given the Supreme Court's actions, and the fact that the definition of marriage considered and amended by lower courts was based on common law rather than statutory provisions, there is no constitutional impediment preventing Parliament from taking the issue back into its own hands and adopting a legislated definition of marriage that corresponds to the traditional common-law definition. Such legislation would not implicate a Charter violation. And so, contrary to the protestations of some gay-marriage advocates, there would be no need to resort to the notwithstanding clause.

The Supreme Court has effectively stated that this important social policy matter is one that should remain within the jurisdiction of Parliament. This is consistent with the intent of the Charter's drafters, as made clear by legislators during the debates leading up to its adoption.

The question of whether the notwithstanding clause is an appropriate exercise of Parliament's jurisdiction in this context is an issue that Canadians can debate as an abstract matter. But for practical purposes, the issue is not relevant.

NOTE:  Vic Toews, Q.C. is a constitutional lawyer and former Attorney General and Minister of Justice for the Province of Manitoba .