Reckless Revisitation of A Bad Law
Dear Globe & Mail Editors,
The write up the other day by that well-groomed feller with the nice clothes, Andre Picard, only covers half the story and in my view, was crafted with a wee 'slant' on some of the facts.
The article seems to indicate that it is somehow improper for a duly-elected government to repeal a law.
Further the inference is that the law in question has already been vetted and totally approved by the Supreme Court when in fact this is untrue.
The Civil Marriages Act resulted from 7 provinces following the lead of the Appeals Court of Ontario that decided in the Halpern case to disregard the 3 other provincial courts decision to stay the application of their "redefinition" of marriage until the Parliament of Canada had had the opportunity to consider and legislate on the fact that no express definition of marriage existed in Canadian or British legislation.
No definition in statute law that is except s.1.1 of the Modernization of Obligations and Benefits Act of 2000 that stated "For greater certainty, the amendments made by this Act do not affect the meaning of the word "marriage", that is, the lawful union of one man and one woman to the exclusion of all others " that the Ontario court simply chose to dance out of their orb of consideration.
In other words, 3 of 4 courts found even though they felt that in light of the Charter (with the read-in analogous ground of sexual orientation) the denial of marriage licences and registrations to SameSex couples was wrong, they still felt obligated to defer to the Federal Parliament (that holds constitutional jurisdiction over Marriage).
The Civil Marriages Act is based on the one Court that bulled ahead and "made new law" based on a common law definition from an off-point, bigamy case from 1866, while simultaneously disregarding the 'for greater certainty' section of a 2000 Canadian statute that expressly dealt with SameSex benefits and obligations.
In addition, the Reference to the Supreme Court was completely inconclusive -they refused to answer question #4 (Is the opposite‑sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in section 5 of the Federal Law-Civil Law Harmonization Act, No. 1, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent?)
They refused because they had no authority to answer YES - there was no case on appeal before them.
They could not legally overturn the Halpern case because it was not before them - Ontario and the Federal Justice Dept had purposely NOT appealed it.
The Court was legally powerless to say Yes and unwilling to say NO when that was the only choice left.
Further, the article's panel of 'constitutional experts' have forgotten the Disallowance power (s.56 BNA Act 1867).
Mr Harper can simply get a majority vote in the House and with that and his position as Prime Minister simply ask the Queen personally (i.e.no longer "in-Council" since Canada Act UK) to disallow the Civil Marriges Act any time before July 20, 2007.
Perhaps in future you'll cover all the story, not just the parts you prefer to support.
Backgrounder & References
http://robertede.blogspot.com/2005/12/homosex-marriage-act-saves-canada-or.html
The write up the other day by that well-groomed feller with the nice clothes, Andre Picard, only covers half the story and in my view, was crafted with a wee 'slant' on some of the facts.
The article seems to indicate that it is somehow improper for a duly-elected government to repeal a law.
Further the inference is that the law in question has already been vetted and totally approved by the Supreme Court when in fact this is untrue.
The Civil Marriages Act resulted from 7 provinces following the lead of the Appeals Court of Ontario that decided in the Halpern case to disregard the 3 other provincial courts decision to stay the application of their "redefinition" of marriage until the Parliament of Canada had had the opportunity to consider and legislate on the fact that no express definition of marriage existed in Canadian or British legislation.
No definition in statute law that is except s.1.1 of the Modernization of Obligations and Benefits Act of 2000 that stated "For greater certainty, the amendments made by this Act do not affect the meaning of the word "marriage", that is, the lawful union of one man and one woman to the exclusion of all others " that the Ontario court simply chose to dance out of their orb of consideration.
In other words, 3 of 4 courts found even though they felt that in light of the Charter (with the read-in analogous ground of sexual orientation) the denial of marriage licences and registrations to SameSex couples was wrong, they still felt obligated to defer to the Federal Parliament (that holds constitutional jurisdiction over Marriage).
The Civil Marriages Act is based on the one Court that bulled ahead and "made new law" based on a common law definition from an off-point, bigamy case from 1866, while simultaneously disregarding the 'for greater certainty' section of a 2000 Canadian statute that expressly dealt with SameSex benefits and obligations.
In addition, the Reference to the Supreme Court was completely inconclusive -they refused to answer question #4 (Is the opposite‑sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in section 5 of the Federal Law-Civil Law Harmonization Act, No. 1, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent?)
They refused because they had no authority to answer YES - there was no case on appeal before them.
They could not legally overturn the Halpern case because it was not before them - Ontario and the Federal Justice Dept had purposely NOT appealed it.
The Court was legally powerless to say Yes and unwilling to say NO when that was the only choice left.
Further, the article's panel of 'constitutional experts' have forgotten the Disallowance power (s.56 BNA Act 1867).
Mr Harper can simply get a majority vote in the House and with that and his position as Prime Minister simply ask the Queen personally (i.e.no longer "in-Council" since Canada Act UK) to disallow the Civil Marriges Act any time before July 20, 2007.
Perhaps in future you'll cover all the story, not just the parts you prefer to support.
Backgrounder & References
http://robertede.blogspot.com/2005/12/homosex-marriage-act-saves-canada-or.html
posted by Ed E. Trebor at
10:09 p.m.
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