January 25, 2005
Today CCIC received the letter addressed to the Opposition Leader, Stephen Harper, from the 130 law professors, who expressed the opinion that traditional marriage is unconstitutional due to the rulings by provincial judges and that only an invocation of the Notwithstanding Clause can protect the traditional marriage definition. The learned signatories esteemed the prospect of further Supreme Court involvement in the marriage issue to be inevitable, unless the Notwithstanding Clause is exercised. CCIC notes that as a practical matter such cannot be done by the Leader of the Opposition, who does not form the government, but must be executed by Parliament or the provincial legislature. This letter should therefore have more appropriately been addressed to the Prime Minister.
The signatories to the letter also apriori postulate the legal supremacy of provincial courts over the Constitution in place of Parliament, and that authority and jurisdiction of the provincial courts was appropriately carried out by the provincial rulings declaring tradition marriage unconstitutional. Provincial courts heretofore were not known to have jurisdiction over federal constitutional matters. Whereas conservative jurists and constitutional authorities view changes to the Constitution Act to be the sole discretion and jurisdiction of the people of Canada through elected representatives in Parliament, with the provincial legislatures ratifying such changes through the amending formula.
This opinion by 130 law professors of course represents a major fallback position for the government to legitimize their legislative strategy.
Section Sec. 33(1- 5) provide:
33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.
(2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.
(3) A declaration made under subscetion (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.
(4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).
(5) Subsection (3) applies in respect of a re-enactment made under subsection (4).
CCIC has been promoting a National Referendum on the issue of "same sex marriage" as the best way the obtain an immediate formal and incontrovertible _expression of the majority of the Canadian people on the record that will settle the issue politically. A longer range strategy must subsequently then also address a Constitutional Amendment to forestall any future legal challenges to federal legislation defining marriage as the union between one man and one woman, to the exclusion of all others.
Canadians must be given the opportunity to express their convictions regarding such a pivotal institution as the core biological entity that marriage represents, and the role it occupies in the continuation of the human race, and order of civil society. This issue is too important to be left to the whim of politicians who have demonstrated to have less than respect for the democratic functioning of our institutions.
Why any government would want to risk social experimentation with such a sacred and fundamental social institution is unfathomable to most thinking people.
CCIC therefore once again calls upon the Leader of the Opposition and the Government of Canada to endorse and forthwith issue a writ for a National Referendum on the Constitutional definition of traditional marriage.
Christian Coalition International (Canada) Inc.
P.O. Box 6013, Station A
Toronto, Ontario
Canada M5W 1P4
Phone nr. 1-905-824-6526

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