[Stephen Dame]

I have to retract my previous post. Alberta cannot use the notwithstanding clause against the definition of marriage. The SC gave that power to the federal government and thus is out of Alberta's jurisdiction.

No, your previous point still makes sense.

Alberta would first have to pass a law that says "marriage is only between a man and a woman" and then once the Court struck that down as unconstitutional, Ralph or whoever could then go ape shit with a "proud stand against tyranny my good sirs!"

[prz]

I have to retract my previous post. Alberta cannot use the notwithstanding clause against the definition of marriage. The SC gave that power to the federal government and thus is out of Alberta's jurisdiction.

No, your previous point still makes sense.

Alberta would first have to pass a law that says "marriage is only between a man and a woman" and then once the Court struck that down as unconstitutional, Ralph or whoever could then go ape shit with a "proud stand against tyranny my good sirs!"

I dont get your point. If the SC says its a federal matter, than the provinces cannot legislate in that area. In this case, the power to define marriage is granted to the federal government. So Alberta cannot go and create a law in the area. In addition, since its out of their jurisidction they cannot use the notwithstanding clause.

[VioletlightHeron]

I'm confused, isn't the notwithstanding clause a constitutional tool for the federal government to force the provinces to enforce laws they may not like or what to enforce?

[skippy the wonder dog]

The notwithstanding clause is a little wording in the Charter of Rights and Freedoms that particularly fascinates the right wing. Essentially it says that notwithstanding all these nice rights and stuff, parliament can override the Charter just by expressly writing into the law that the Charter doesn't apply. Then they have to periodically renew it.

I don't know if it has ever been used. Prz, you're the full-fledged lawyer, has it?

[fingernailsonhull]

This is another example of the Supreme Court of Canada having way too much power. Personal biases about gay marriage aside, this should have been settled by parliament, not the courts. Judges are unelected, unaccountable, and unrepresentative. Also, the notwithstanding clause, section 31, I believe, of the Constitution Act 1982 can be used by either federal or provincial governments. Plus, marriage is a civil matter, which is under provincial jurisdiction. If the SC believes they can safeguard this by replacing it under federal jurisdiction, they have become more activist than I thought. The constitution places matters such as marriage under the provinces. It is under the power of a province that a presiding official gives a marriage solemnity. The courts are going against the constiution itself on this one.

[fingernailsonhull]

Skippy, both Quebec and prz, correct me if I'm wrong, either Saskatchewan or Manitoba, has used the notwithstanding clause. It is currently in effect in Quebec for their language laws.

[fingernailsonhull]

As to Violet's question - no, that is not what the notwithstanding clause is. It can be used by either the federal or a provincial government to pass a law notwithstanding the provisions of section 2, or sections 7-15 of the Charter. For instance, let's say that the government of Ontario wanted to pass a law that said that all newspapers may only print stories given them by the government. That is an infringement on free press, a section 2 right. However, this law can come into effect anyway if the notwithstanding clause is used. Most people dislike this clause. I like it. Using it in these days would be political suicide. But, it leaves the real balance of power in the hands of our elected officials instead of unelected judges who would like to define our society for us using their own agenda.

[fingernailsonhull]

Sorry, I'm a political scientist. I get a little excited about these things.

[VioletlightHeron]

This is another example of the Supreme Court of Canada having way too much power. Personal biases about gay marriage aside, this should have been settled by parliament, not the courts. Judges are unelected, unaccountable, and unrepresentative. Also, the notwithstanding clause, section 31, I believe, of the Constitution Act 1982 can be used by either federal or provincial governments. Plus, marriage is a civil matter, which is under provincial jurisdiction. If the SC believes they can safeguard this by replacing it under federal jurisdiction, they have become more activist than I thought. The constitution places matters such as marriage under the provinces. It is under the power of a province that a presiding official gives a marriage solemnity. The courts are going against the constiution itself on this one.

I have to agree with this, its not up to judges to make new case law.Their job is to look at laws and see if they pass constitutional muster. It is extremely unhealthy for a society to let judges, who are bullet proof when it comes to public accountability, decide the laws of society, regardless of the political biases of the judges.

[fingernailsonhull]

Couldn't agree with you more.

[prz]

Skippy, both Quebec and prz, correct me if I'm wrong, either Saskatchewan or Manitoba, has used the notwithstanding clause. It is currently in effect in Quebec for their language laws.

I know for sure that Quebec has and is still using the notwithstanding clause for the whole language and signs issue. Also, Jeff I think you are right that either Man. or Sask used it once to handle a strike, I believe by a public employees union.

As for the SC giving the power to the feds, The Alberta Justice Minister was quoted as saying,

"Since the court ruled the authority over same-sex marriage falls to the federal government, it is only the federal government who can invoke the notwithstanding clause to maintain the traditional definition of marriage."

So what this means is the feds can define marriage and the provinces simply issue licences based on Ottawa's laws.

[fingernailsonhull]

Yes, it was back-to-work legislation, I just forget which province it was. This is going to bug me.

[skippy the wonder dog]

Ah, I had forgotten Quebec... of course.

Quebec governments are more or less bulletproof on the language issue. But I don't see the other provinces or the federal government getting away with invoking the notwithstanding clause without a genuine emergency. Which a same-sex marriage ain't.

The notwithstanding clause exists for a reason, but politicians who threaten to invoke it whenever the Charter becomes politically inexpedient make a mockery of the constitution. Living in a society of laws means accepting the rule of law, not pandering to the sentiment du jour.

[fingernailsonhull]

I agree with you skippy. But, who says that SC justices are one and the same with the constitution? It is not really the rule of law. It is the rule of the few who can twist the Charter to say whatever they want it to. It is a new kind of oligarchy.

[skippy the wonder dog]

I may have come on a little strong with that ... the notwithstanding clause is necessary. But I am concerned with the apparent willingness of some politicians to invoke it at the drop of a hat. Although the political costs of invoking it might be high, it is too easy to invoke.

Any use of the notwithstanding clause should be in the public interest, in the national interest, not in the interest of the governing party's supporters alone. Particularly with politicians such as Klein or Mike Harris, who play the politics of division and win elections by pandering to core support rather than consensus building, threats to invoke the notwithstanding clause really bother me. It makes a mockery of our constitutional democracy.

I don't think a valid, rational argument can be made that it banning gay marriage is in the national interest. This is not an issue for the notwithstanding clause. I say, let opponents of gay marriage take the more difficult, and more democratic route: constitutional reform.

hock: