Senate can't stop
same-sex marriage, Cotler says
By ALEXANDER PANETTA,
theglobeandmail.com from the Web, July 12, 2005
OTTAWA -- The Senate can't
stop same-sex marriage even if it refuses to pass the legislation, Justice
Minister Irwin Cotler said yesterday.
He told a Senate committee that the there are no legal avenues to turn back the
tide -- except the Constitution's notwithstanding clause.
If the Senate refuses to adopt Bill C-38, court rulings in eight provinces will
stand and gays and lesbians would still be allowed to wed practically everywhere
in Canada.
"Same-sex marriage would still be the law of the land," Mr. Cotler told the
committee.
Where a law has been found to be unconstitutional, the only options open to
Parliament are to either remedy the unconstitutionality -- which is what we are
doing with Bill C-38 -- or to overrule that court decision by invoking the
notwithstanding clause."
Same-sex civil ceremonies are already allowed in all provinces except Alberta
and Prince Edward Island, and PEI has indicated it will also start marrying gays
and lesbians.
The federal government has never used the notwithstanding clause, the escape
hatch that allows it to override the Charter of Rights and Freedoms.
More than one senator shot back that the Charter is not a sacred document.
"You seem to worship at the altar of the Charter. I do not," Tory Senator
Anne Cools said.
The former Liberal described herself as an admirer of the Charter's founding
figure, the late prime minister Pierre Trudeau. But she added: "The
Charter has gone places that Pierre Trudeau never would have intended."
Provincial courts have overturned traditional marriage because, they say, it
violates the Charter of Rights guarantee of equality for all citizens.
Bill C-38 will become law -- possibly within days -- once it is adopted in the
Senate and receives royal assent.
The bill sailed through the upper chamber in a 43-12 second-reading vote last
week; a similar result is expected in a final vote.
With the bill's passage, Canada would join the Netherlands, Belgium and Spain in
legalizing same-sex marriage.
Mr. Cotler was peppered with questions from senators about alleged shortcomings
in the bill and he answered each one.
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