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Simple answers to Complex Questions and Complex Answers to Simple Questions. In real life, I'm a Greater-Toronto (Canada) Realtor with RE/MAX Hallmark Realty Ltd, Brokerage. I first joined RE/MAX in 1983 and was first Registered to Trade in Real Estate in Ontario in 1974. Formerly known as "Two-Finger Ramblings of a Forensic Acuitant turned Community Synthesizer"

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Tuesday, December 20, 2005

Queen Can Disallow Same Sex Marriage Act - anytime before July 20, 2007

This link will take you to a detailed backgrounder on the events leading to the proclamation of the Civil Marriages Act and the Canadian Constitutional processes IN PLACE since 1867 that permit its cancellation by the "Executive Government and Authority of and over Canada" (BNA Act s.9)

Executive Summary

At the root of the Civil Marriages Act is the Ontario Appeals Court Halpern decision. This decision was based on the fact that no Legislative definition existed in Canada and hence the Ontario Court felt no compunction to defer to Parliament as three other lower courts in Ontario, BC and Quebec had done.

The Halpern case was not appealed by Ontario or by the Federal Justice Department.

As a result of the Ontario court changing the Common Law definition of marriage in Ontario, the other provinces and territories simply domino-ed that precedent - no public input was sought.

The Federal Civil Marriages Act codified "a" definition of marriage for the first time - prior to that Bill, no definition existed (there did exist prohibitions on brother-sister, etc)

The Supreme Court Reference:
1) The Supremes declined to answer the 4th Question that asked the Court if the traditional definition violated the Charter of Rights - the Reference did not provide Canadians, nor Parliament with a full and comprehensive opinion on the 'ins and outs' of all the issues in play as would a "hearing" of a proper Appeal before the Court.

2) They warned that Civil Ceremony practitioners were NOT protected by this Act (solemnization is a provincial jurisdiction and ultra vires to Parliament)

3) They warned that conflicts between the two equal Freedoms - "religious freedom" and the "right to marry" - would likely collide sometime in the future, but they refused to speculate on hypothetical future conflicts. They rested on the ability of s.52 and precedents in s.15 to solve any future legal problems.

4) They warned that people who refuse to perform religious ceremonies or who refuse to allow the use of "sacred places" would be protected legally from claims under the Charter but, the Court carefully pointed out that these people/institutions would not be saved by the Act from potential civil law suits.


In my view:

a) the Ontario Halpern decision is silky, smooth sophistry. At minimum the Ontario Court wanted to bring the simmering issue to a boil and at worst they suffered from "let's make new law" enthusiasm. A bad court decision cannot stand, nor can any legislation that flows from it.

b) the Ontario government and/or Federal Justice department, in light of known divisions in public opinion, should have appealed the Ontario decision to clarify this issue at the highest Court

c) the Supreme Court Reference was mis-represented to the public by both the Justice Minister and Prime Minister

d) the discussion in Parliament's two chambers was conducted as an 'in light of the reference' rubber-stamp.

e) The Notwithstanding Clause was designed for just such a siutation.

f) The Queen still retains the s.56 power to Disallow any Canadian Act.

After that, we can consider afresh (perhaps after a plebiscite using the 1992 Referendum Act)what ALL Canadians consider appropriate as the definition of Marriage.

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