Walk a Kb or Two in my Moccasins- Nobody 'splained it to me like that!

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"

My Photo
Name:

- Realtor (2nd or 3rd best you'll likely run into)
- Philosopher King of Real Estate Business in Ontario (self-assessed)
- Likes Public Policy & Governance Discussions
- Likes discussion on being an "Attestant" and First-Century Ecclesias(aka 'primitive congregations)

Friday, December 16, 2005

HomoSex Marriage Act Saves Canada or, How I stopped worrying and learned to love the Constitution.

Knowledge is power - feel free to gather a bit of both!


Notwithstanding the hoopla over the 'outing' of Mr Stephen Harper's 1997 speech, we all must acknowledge that he delivered a few catchy turns of phrase - "Canada's civics ... a system ... that's described as unpaid checks and political imbalances" and "As long as there are exams, there will always be prayer in schools".

However, to me, the best part was "(The Liberal party has) put sexual orientation in the Human Rights Act and will let the courts do the rest". This shows his awareness, in 1997, of the organized 30 year campaign to decriminalize, to acknowledge, to normalize, to characterize (as-a-minority-requiring-protection) and now to sanctify the homosexual lifestyle - the ultimate type of self-centred, recreational sex.

Homosexuality has been present throughout human history, sometimes behind closed doors and sometimes openly - the Ancient Greeks, the Sodomites of the Old Testament, at the height of the Roman Empire (hence Paul's New Testament admonitions), oft-whispered occasions within Royal Families and governments. The more 'sophisticated' a society becomes - rich, decadent, self-indulgent, nihilistic and God-less, the more homosexuality becomes openly practiced and widely accepted.

I don't know what has possessed Mr Harper to commit to not use the Notwithstanding Clause and thereby toss away this perfectly legal, widely-misunderstood, but precisely-designed-for-this-purpose Constitutional double-check - I can only hope he has a well-grounded legislative/legal plan to steer Canada out of this mess and is not just running from the 'demons' that the Liberals have placed around Section 33 to protect it, or not just 'setting up for failure' the folks who support his opposition to this new definition of marriage.
So, for those who thought they'd vote for the Conservatives solely because they promised to re-open the definition of marriage in the House, and now (post #1 & #2 Debate) have been set to wondering how Mr Harper could reverse this done deal law without the 'notwithstanding clause' in his arsenal, may I proffer some arrows for the quiver.

Given that 'elections are no time to DEVELOP policy' and based on the assumption that few Canadians are likely to have read the Court decisions and key bits of Legislation leading up to the Federal Bill that formally and for the first time gave a legislative definition to marriage please allow me to provide a summary of events that you can mull over after Jan 23rd.


New Background  -- Added Apr 15/2014

1) In November 1987 article entitled THE OVERHAULING OF STRAIGHT AMERICA  by Marshall Kirk and Erastes Pill (pseudo for Dr. Hunter Madsen)  appeared in Guide Magazine. A few years later it's authors did expand it into a book:
 Marshall Kirk, Hunter Madsen: "After the Ball -- How America will conquer its fear and hatred of Gays in the 1990s". (Plume, 1990), ISBN: 0452264987.

Oh My (sigh) "we" have been manipulated
in accordance with the steps outlined in these 2 pieces



BEDROOMS OF THE NATION

Not so long ago, a now-revered, Justice Minister decided that society and the law should change their attitudes towards the activities of "the bedrooms of the nation" - fornication, adultery, divorce and homosexuality.

Divorce was made easier to obtain, the stigma faded from it, family law became more complicated and til-death-do-us-part family-life began to disintegrate one couple at a time. Homosexuality became not-a-criminal-offence and the forward-thinkers (some of whom dabbled in this form of self-centred, recreational sex) - began thinking ahead.

With so many divorces, laws for the protection of spouses and children that had been cast-off-with-no-income etc were enacted - property, financial assets, income became jointly owned and alimony, child support and maintenance payments became as common as car payments.

To avoid penalizing dependent 'partners' and children of families that lived outside of legally sanctioned marriage, the definition of "spouse" was expanded in 2 or 3 versions to include non-married people of the opposite sex who had co-habitated for a period of time, had publicly presented themselves as a couple or who had borne children together.

These "Common Law" relationships now had rules governing their dissolution that were just slightly inferior to the rights of married spouses (e.g. in Ontario, property owned by just one person prior to co-habitation was excluded), but far superior to conditions in years gone by.

CHARTER OF RIGHTS

Skip ahead to the Charter of Rights 1982 which, apart from two, over-riding, 'subject-to' clauses, codified (hmnpf, I thought we were a common law jurisdiction) a whole slew of rights we thought we already enjoyed, and enunciated in its Equality Rights section #15.1, universal Canadian equality "before the law", and "under the law", plus the right to both "equal protection" and "equal benefit" of the law without discrimination.

But, this section, that seems to speak about individual rights actually bestows "special benefits" to "groups" i.e. those individuals that could bundle themselves into an identifiable sub-set of Canadians using "in particular": "race", "national or ethnic origin", "colour", "religion", "sex", "age" or "mental or physical disability" as criteria.

Then in s. 15.2, the Charter exempts any affirmative action "law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of (surprise, surprise) race, national or ethnic origin, colour, religion, sex, age or mental or physical disability".

Scratch your head over what segment of Canada was left unprotected and was deemed NOT worthy of "special benefits", but imagine even harder the discussions, pro & con, necessary to hammer out an agreement ON s. 15.1 and necessary to wheel and deal with those participants who would go along with 15.1 ONLY IF they got 15.2 included (ever been on a committee?- then you know).

CANADIAN HUMAN RIGHTS ACT

Jump now to Mr Harper reference, to the addition of 'sexual orientation' to the "prohibited grounds of discrimination" codified in the Canadian Human Rights Act which normally is applied in relation to daily commercial transactions, accommodation and employment(ss. 5-9) plus a few specifics regarding "full membership in an organizations", hiring, training, wages, public displays, telecommunicated "hatred", "harassment" and "sexual harassment", "threatened retaliation" for complaining under the Act, pension & insurance plans, etc.(ss10-14.1, 21).

With the insertion of the correct wording (sexual orientation) into a Federal 'discrimination' law accomplished (that couldn't hurt, could it?, shouldn't they be protected from the same nonsense WE had to suffer?), it was now the time for the HomoSex legal team to start using the Charter to work on the word "spouse".

EGAN - definitions read into Charter

This opportunity was provided by Messers Egan and Nesbit, who as described in their 1995 Egan case were "homosexuals who have lived together since 1948 in a relationship marked by commitment and interdependence". Egan retired, received the Old Age Security & Guaranteed Income Supplement programs and upon reaching age 60, Nesbit applied for a spousal allowance as spouse and was denied.

Quick as a wink, the Supreme Court with Section 15.1 in hand, re-wrote the definition of "spouse" in the Old Age Pension Act, established that HomoSex partners were entitled the same benefits under that Act as HeteroSex Common Law spouses and stated that sexual orientation could be "read in" to the Charter of Rights as an 'analogous' ground for discrimination.

M. v. H.

Next up, the HomoSex Activist dream team found a couple of ladies who were not married, were not heterosexual and who had a disagreement about support and property settlement after they split up.
The Supreme Court and Section 15.1 (re-jigged to include the invisible but, "read-in" analogous ground) , extended the provisions of the Family Law Act in the M. v. H. case 1999 (N.B. the two women settled out-of-court, but the activists carried on regardless) and declared that HomoSex couples were to be treated the same as HeteroSex Common Law couples in every way.

The monumental task of adding "or same sex spouse" to scads of pieces of legislation was implemented in each province by separate bill and federally by the Modernization of Benefits and Obligations Act in 2000.

Not surprisingly, since the decision to make these changes was imposed by the Courts, there was much discussion inside and outside Parliament about 'slippery slopes', judicial activism', modern societal norms and the traditional definition of marriage.

In the end, the bill passed with an "interpretation" clause included as Section 1.1, right below the title "1.1 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."
Most Parliamentarians thought that they had made a definitive statement on what they were changing and what they were not 'tinkering with' and I can only presume they thought they were stating in legislation what defined marriage.

But then, just when everyone was getting accustomed to the rights of HeteroSex Common Law couples being recognized as 'slightly inferior' to married couples and getting acclimatized to HomoSex couples being equal to THAT slightly inferior legal state ... the final assault started.

QUEBEC and BRITISH COLOMBIA

Various homosexual couples in several provinces started applying for Marriage Licenses and were refused. In Hendricks v. Quebec [2002] J.Q. No. 3816 (S.C.), the Judge declared invalid the prohibition against same-sex marriages in Quebec caused by the intersection of two federal statutes and the Civil Code of Quebec on the basis that it contravened s. 15(1) of the Charter and could not be saved under s. 1. She stayed the declaration of invalidity for two years.

Similarly in EGALE Canada Inc. v. Canada (Attorney General), [2003] B.C.J. No. 994, released on May 1, 2003, the British Columbia Court of Appeal declared the common law definition of marriage unconstitutional, substituted the words "two persons" for "one man and one woman"and suspended the declaration of unconstitutionality until July 12, 2004, the expiration of the two-year suspension ordered by the Divisional Court in this case.

ONTARIO

Meanwhile back in Ontario, two couples had legally circumvented the need for a marriage license and had been married in a religious ceremony, but "the Registrar refused to accept the documents for registration, citing an alleged federal prohibition against same-sex marriages".

They went to Divisional Court and "(t)he panel's ruling on remedy was not unanimous. Smith A.C.J.S.C. was of the view that Parliament should legislate the appropriate remedy and that it should be given two years to do so, failing which the parties could return to the court to seek an appropriate remedy. LaForme J. favoured immediate amendment, by the court, of the common law definition of marriage by substituting the words "two persons" for "one man and one woman". Blair R.S.J. adopted a middle position; he would have allowed Parliament two years to amend the common law rule, failing which the reformulation remedy proposed by LaForme J. would be automatically triggered. It is Blair R.S.J.'s position that is reflected in the formal judgment of the court."

The decision was appealed and cross-appealed as the Halpern case at the Court of Appeal for Ontario on April 22 to April 25, 2003. The Court considered the Egan and M. v. H. cases, section 1.1 of the Modernization of Benefits and Obligations Act, the Canadian Constitution's distribution of Legislative powers and the history of definitions of marriage going back to "the classic formulation of Lord Penzance in Hyde v. Hyde and Woodmansee (1866), L.R. 1 P.&D. 130 at 133: "I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others." " - a denied UK petition to grant a Dissolution of a (first for both) Mormom marriage performed in the USA Territory of Utah.

The panel of three, R. Roy McMurtry, the Chief Justice of Ontario, J. C. MacPherson J.A. and E. E. Gillese J.A., debated whether to agree to defer to Parliament (in keeping with Hendricks v. Quebec, the British Columbia Court of Appeal and the two of three Ontario Divisional Court judges in the case being appealed before them) but decided that since the ONLY definition of marriage that they could find was at Common Law - the Hyde case of 1866 - they as jurists, equal to those who had created the common law definition, could change it.

As hard as they had scoured, they could find no legislative definition of marriage in Canada and given that lack, they felt free to not defer to Parliament, since Parliament was not being offended (the Modernization .... Act's Section 1.1 was deemed "by the parties" to "simply affirm(s) that the (Modernization ...) Act does not change the common law definition of marriage").

The result was an immediate reformulation of definition of marriage as "the voluntary union for life of two persons to the exclusion of all others" and Court orders for the immediate issuance of marriage licenses and registration of marriage certificates for the couples in the case.

So all of a sudden, and to much surprise, the Court of (Long Knives) R. Roy McMurtry had made new law. They'd girded up their courage and changed the definition of marriage all on their own.
Now perhaps the three judges made this important decision just to get the 'ball rolling', confident that the Ontario government or the Federal Justice department would appeal their case and their decision would be "checked over" by the Supreme Court in short order.

But Ontario did not appeal (provinces are responsible for solemnization of marriages) nor did the Federal Government (Ottawa has jurisdiction over Marriage and Divorce) and one by one other similar cases found their way to courts in other provinces and territories with the same precedent-following result.

So Roy McMurtry and his two associate Justices' decision stood. But is it a rock-solid foundation for such an important issue? Surely both proponents and opponents of the concept would want to ensure that the correct and legal decision was in place - the opponents to fight it and the proponents to ensure that "the ensuing" marriages would not be later declared invalid (as happened in San Francisco, California when a municipal mayor's decision to issue marriage licences was overturned).

Can a ground-breaking provincial case change the definition of marriage - a Federal responsibility? Were their reasons strong enough? Was their thinking clear and their logic pure? Were they bias-free and immune to wanting places in Canadian law history? Were they "emboldened" as recommended recently by Chief Justice McLachlin?

Can the ground-breaking law that is fundamentally rooted in the Roy McMurtry court taking on the responsibility to change the definition of marriage based on their duly-granted power to change the Common Law be based on a definition from an 1866 "polygamy/ bigamy" Divorce case (hence it's emphasis on ONE man and ONE woman)? ( NB this Court held that the Mormon marriage was not a Christian marriage [because the duties -fidelity et al - and remedies for breach -adultery- were impossible] and dismissed the petition for Divorce on that basis.
"Is the Court, then, justified in thus departing from the compact made by the parties themselves? Offences necessarily presuppose duties. There are no conjugal duties, but those which are expressed or implied in the contract of marriage. And if the compact of a polygamous union does not carry with it those duties which it is the office of the marriage law in this country to assert and enforce, such unions are not within the reach of that law. So much for the reason of the thing."

The decision concludes with:
"In conformity with those views the Court must reject the prayer of this petition, but I may take the occasion of here observing that this decision is confined to that object. This Court does not profess to decide upon the rights of succession or legitimacy which it might be proper to accord to the issue of the polygamous unions, nor upon the rights or obligations in relation to third persons which people living under the sanction of such unions may have created for themselves. All that is intended to be here decided is that as between each other they are not entitled to the remedies, the adjudication, or the relief of the matrimonial law of England.

Petition dismissed."


Can the definition of marriage be changed because no one heretofore dreamed that it needed defining? Can the fact that (in our common law jurisdiction) no one deemed it necessary to "codify" a universally-understood institution's definition, be used as justification to change that institution's meaning? Can it be that every man, woman and innocent child's, pre-2004 notion of what marriage is, was wrong?

Is this why they say that "The Law is an Ass"?

Well despite all those rhetorical questions, the decision CAN stand if it's not overturned at a higher Court, or if law that flows from that decision is not over-ridden by Parliament, the supreme Canadian law-maker, using the notwithstanding clause s.33.

In addition, the law resulting from the decision CAN stand - God save the Queen and the multi-level checks and balances built into our eminently-suitable Constitution - if it is not Disallowed (s.56) by the Monarch within 2 years.

Surely that couldn't happen! Didn't the Supreme Court check over the Chretien/Martin proposal? Didn't Justice Minister Colter exhort over and over, that the Supreme Court had given its "Charter of Rights" stamp of approval?

Well sort of - Colter did express the correctness of his government's actions, did express a view that the Court had mandated the Act he was sponsoring and did get mighty exercised when any mere mortal questioned the 'rightness' of his rights mission, but in my opinion, the Supreme Court didn't say exactly what Mr Colter says they said.

SUPREME COURT REFERENCE

The Supreme Court heard a Reference case in late 2004, containing the text of the proposed Civil Marriage Act and 4 related questions, prior to the introduction of the Act.

1) Is the annexed Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes within the exclusive legislative authority of the Parliament of Canada? If not, in what particular or particulars, and to what extent?

2) If the answer to question 1 is yes, is section 1 of the proposal, which extends capacity to marry to persons of the same sex, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars, and to what extent?

3) Does the freedom of religion guaranteed by paragraph 2(a) of the Canadian Charter of Rights and Freedoms protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs?

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?

The Court answered Q1 by saying that indeed the definition of marriage fell within federal jurisdiction and stating that the definition of marriage was not "fixed" in the Constitution i.e. not written and not un-changeable.
Q2 was answered by stating that two Charter rights would be affected. The new law would grant the 'right' to marry to HomoSex couples and some Canadians' "religious freedoms" might be affected -in the future- by that new right. They state that no one right can trump another right - they are equal, but sometimes rights do conflict and "resolution of such conflicts generally occurs within the ambit of the Charter itself by way of internal balancing and delineation" (para. 52).

53. The protection of freedom of religion afforded by s. 2(a) of the Charter is broad and jealously guarded in our Charter jurisprudence. We note that should impermissible conflicts occur, the provision at issue will by definition fail the justification test under s. 1 of the Charter and will be of no force or effect under s. 52 of the Constitution Act, 1982. In this case the conflict will cease to exist.

54 In summary, the potential for collision of rights raised by s. 1 of the Proposed Act has not been shown on this reference to violate the Charter. It has not been shown that impermissible conflicts - conflicts incapable of resolution under s. 2(a) - will arise.



In other words, problems may come up (we cannot guess the future or speculate on hypothetical situations) but we have considered the possibilities and conclude that the legal framework exists to settle the issues as they arise - within the Charter case law or using s.52 of the Constitution

52(1) 'The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect".
The Court felt they had discharged their responsibility to not assist in creating a Pandora's Box of conflicting rights that they were not fully equipped to handle. (make-work, very Canadian, very bureaucratic)
Q3 They answered in a framework - They assumed the question asked them about whether religious official who perform "both religious and civil ceremonies" could be "compelled by the state" to perform HomoSex ceremonies.

They note too that regarding the actual performance of ceremonies "that it would be for the Provinces, in the exercise of their power over the solemnization of marriage, to legislate in a way that protects the rights of religious officials while providing for solemnization of same-sex marriage. It should also be noted that human rights codes must be interpreted and applied in a manner that respects the broad protection granted to religious freedom under the Charter".(para 55)In addition they state that their consideration "relates only to state action; the protection of freedom of religion against private actions is not within the ambit of this question."
On Q3 they said "state compulsion on religious officials to perform same-sex marriages contrary to their religious beliefs would violate the guarantee of freedom of religion under s. 2(a) of the Charter. It also seems apparent that, absent exceptional circumstances which we cannot at present foresee, such a violation could not be justified under s. 1 of the Charter.(para 58) and conclude in(para 59)that the same right to religious freedom would apply and protect from state compulsion to allow the use of a "sacred place(s)" for ceremonies.
But they do not comment on non-religious ceremony performers nor on whether private action (i.e. lawsuit) might be a remedy open to a HomoSex couple who were refused services or denied the use of a sacred place - beware civil servants, your individual Province must protect you and beware religious persons/institutions, you might get sued.
Minister Colter explained all those details and nuanced maybes -right?
Q4 is super critical, the most important question, but answering it was a no-win, damned-if-you-do-damned-if-you-don't situation for the Supreme Court.
First, the government that presented the Reference, declared it would proceed with the bill regardless of the Court's analysis and recommendations. The Court acknowledged this, and then proceeded to weigh the merits of whether it should answer the question at all. (para 61-71)
The cagey Mr Martin added a new aspect to M. Chretien's, planned-as-slam-dunk, Reference strategy by including this question and by bringing it late in the game - both as a delaying tactic (get re-elected first) and in the hopes that the Court would settle it once and for all (either way) taking the heat off him for carrying through with his predecessor's contentious bill (I think he tried to kill the re-definitioning, but who knows for sure -particularly with him).
The Court identified their dilemma: if they said the current set-up is constitutionally OK, they'd throw a monkey-wrench into the established lower court system where the opposite conclusion had already been reached. In addition the Supremes would have done so without the benefit of actually hearing a case that they could legally overturn (because it was not appealed in the proper timeframe).
On the other hand, if the Court said the current definition is unconstitutional, they've taken all the responsibility for this contentious decision ALSO without having actually heard a real case with real circumstances - not in keeping with their reluctance to speculate in hypotheticals as expressed in #2.
So the "Court exercise(d) its discretion not to answer" question #4 (para. 74), the McMurtry Court's decision remains untested and the Civil Marriages Act passed through both the House and the Senate and was given Royal Assent.

Addition Nov 21 2010 
- the slippery-slope scenario of the prior HomoSex decision(s) starts to come to fruition

The Polygamy "Reference Case" in British Colombia
1) Vancouver Sun
B.C. Supreme Court opens debate on polygamy




My wife says stop here - it gets too specific on the "Crown-in-Council in Canada" topic (that fascinates me - but makes most people's eyes roll back in their heads)



ELECTION 2006
The Definition of Marriage issue was raised by a reporter on the first day of the 2006 Election campaign. Mr Harper re-stated his Party's position that, if elected, he would call a free vote on the traditional definition and no doubt, if successful, proceed to repeal the Civil Marriages Act (he also specified that no marriages would be invalidated by the repeal).

Any PM can do this with a 50%+1 majority in the House, provided it passes the Senate and provided the Governor General doesn't get any King-Byng ideas about exercising the constitutionally entrenched powers (s.12,13) of her office (re-stated in the 1947 Letters Patent) and decides to withhold Royal Assent or Reserve the Bill (s.55-57).

Assuming the repeal Bill is successful, pretty soon somebody (with the dream team in tow) will apply for a marriage licence and/or registration and the whole thing will start again and maybe end up in the Supreme Court for the final showdown.

If this future, hypothetical Court strikes down the repeal Bill, then Mr Harper can use the perfectly legitimate, constitutionally-entrenched power of the Notwithstanding clause (s.33) to over-ride the Supreme Court.
And that might be the end of it for 5 years - the notwithstanding clause has a 5 year sunset clause in it, a Bill proclaimed using s.33 expires unless renewed before this deadline.

BUT ... the earnest and up-for-election Conservative Leader has just volunteered to forego the powers contained in the notwithstanding clause. Perhaps he's confident the repeal question will pass with no objections from anyone, or perhaps he's gone a bit soft on the Civil Marriage Act and he's just throwing the traditional-marriage crowd a bone, hoping they won't think it through?

Regardless, and as I stated at the outset, here's a few arrows for the notwithstanding-less quiver.
Mr Harper, whether, you're in government or opposition after January 23rd, you are in a great position to champion the clarification of the McMurtry court's decision.

After the election, appeal to all the Jean/Carol Canucks who think it's 'just insanity' that we ever started thinking about expanding the definition of marriage to include homosexuals, never mind the fact that it's been done and all the governors and judges are saying it must be this way and recommending the discussion be ended.

If you stay on the legal point - a bad law cannot stand - you may be able to enlist the intellectual agreement of law-conscious Canadians (perhaps even the HomoSex Activist dream team).

If you keep to the legal high ground:
-question McMurtry's non-deference to Parliament,
-undermine public confidence in the reasoning carried out at McMurtry's court- the legal foundation for the Civil Marriage Act.

This might be easier than you'd first think - according to a Canadian Press account, Justice of the Ontario Appeals Court, Roy McMurtry, now says (Jan 05) "It would be preferable if these issues were solved politically," "I think the elected politicians have a vital role to play. But the decisions they make must be constitutionally supportable."
- emphasize how negligent and arrogant (in light of very divided public opinion) the Ontario government and the federal government were in failing to appeal the Halpern decision in a timely fashion,
- point out exactly what the Supreme Court Reference stated, warned about and refused to comment on;
- point out how mis-informative, perhaps dis-informative the Justice Minister and Prime Minister were regarding the Reference's actual answers;
- show the public the wonderfully stealthy, step-by-step legal campaign by the HomoSex Activist Dream Team, amending s. 15 and then using it at the Supreme Court
AND show Canadians that they have one more Constitutional Card to play.

Rally support, get a petition and a legal brief together and ask the Queen to Disallow the Civil Marriages Act.

Not the Governor General, that office has already signed off .... go to #1, the Queen.

You have until July 20, 2007 to convince Her to make it disappear.

Am I joking? ... Surely that's not the way it works anymore? ... since 1982 Patriation and all that? ....

No, I'm serious, and it STILL works that way. The Government of Canada has been bamboozled and has done something that must be corrected. This is the original purpose of the Disallowance power.

The original context was different, yes; this power was intended to be used by the British "Monarch-in-Council" (a euphemism for the King/Queen compelled to accept the advice of her Cabinet-government) to countermand an improper Act in the colony. But the power of Disallowance is still in the Constitution and it's just as valid today as the day it was written.

This tradition of automatic acceptance of Cabinet advice by the Crown is the quid pro quo of the UK 's system of 'Ministerial Responsibility' in place since they re-established the Monarchy (and here's the Canadian Bureaucracy's modern version).

Today's Crown, Queen Elizabeth II describes her office's function within the United Kingdom: to be consulted, to encourage and to warn. But with regards to Her role in Canada, this is not the case any more.

The Crown/the Queen has been freed of her "in-Council" limitations in Canada, by the very same Act of the UK Parliament (The Canada Act 1982, (U.K.) 1982, c.11) that 'patriated' the 1982 Constitution.
Since "No Act of the Parliament of the United Kingdom passed after the Constitution Act, 1982 comes into force shall extend to Canada as part of its law", but all reference to the Monarch/Queen in Canada's laws and Constitution still remain (as valid today as the day they were written in 1867), we are now headed by a Queen, but no "in-Council".

In short, an appeal to Disallow the Civil Marriages Act would be unprecedented, but not illegal. It would be an affront to the Prime Minister, his Cabinet, the Privy Council and Governor General, but if YOU are affronted by what they've done .... so be it.

The Queen could/might do one of three things:
1) ignore the request as not being conducted through proper channels;
2) review the request and do nothing;
3) review the request and do something.

If She chose to do something, She could immediately disallow the Civil Marriages Act or She could give us until some reasonable time before July 20, 2007, say April 15th, 2007, to hold a plebiscite using the Referendum Act that was used in 1992 (no need to make up more new rules). A full plebiscite campaign and yes/no result should enable HRH to gather an accurate impression of the will of the Canadian voters ... and then She can decide.

What will the Queen-in-person decide? Well, born in 1926, She's experienced the whole world's political, social and economic evolution from a unique vantage point for over 50 years. She's had a family with many of the ups and downs that Canadians have experienced. She's the head of the Church of England (Defender of the Faith) and an extremely well-educated person who has had to have had 'an opinion' (plus a thorough briefing) on every Leader and country in the Commonwealth.

Not too much will be "new" to Her. I believe She's in the perfect position, as an individual, (plus holding the Constitutionally appropriate Office) to make a sound judgment on 1) the validity of the court precedents that have underpinned this law and 2) the suitability of the Civil Marriages Act for Canada, irrespective of its imperfect genesis.

The campaign to Disallow this Bill will also be an enlightening experience for every Canadian - the actual provisions of the 'rule book' we've been NOT following will be used-in-practice and the pundits can explain how, indeed, it IS correct and how indeed, we've been "led" astray.

The reputation of the Rt Hon Wm L M King may get a bit dusty (along with every subsequent PM's), but no one will suffer too much; the relief will be worth any pain involved.

The Canadian people (especially the ones who were adults in 1955 or 1965) will finally understand the thing they just couldn't put their finger on that has been 'wrong' with their governance system.

If we can overturn a Bill that the 'elites' all favour, the concept of the "sovereignty" of Canada will be understood anew and a deemed disposition of sovereign authority will have taken place.

The essence of Popular Sovereignty (understanding it and the ability to use it) will be vested in the collective possession of all of us. We will be sovereign -still not a republic- and the government will be accountable to a newly-defined "Crown" - the citizens, the voters, the taxpayers. The Oath of Allegiance will take on new meaning.

The Assets of Canada, the Crown Corporations, the Crown Attorneys, the land, sea, air, freshwater, timber, mines & wells -the whole shebang- will belong to Canadians collectively and the government's mandate and mission of stewardship and good husbandry of those possessions will be refreshed.

This might be the greatest event in western democratic history, perhaps since the American Revolution, certainly since Confederation (& most definitely since the 1992 Referendum which was astounding in itself - democratic defiance of the Leaders and newspapers).

A true Canadian-style revolution. Not a drop of blood, perhaps a tear here and a rough word there, but emancipation OF everyone, BY everyone, FOR everyone ... using nothing more than the existing, written Constitution that lies right beneath our noses and a forthright willingness to make it happen.
Canada will vault forward into an entirely new era of self-governance, with Canadians following a new model of their own choosing.

Perhaps ... this Century can indeed belong to Canada.



Robert Ede
December 18, 2006
If the Queen chooses to ignore, to do nothing, or to not follow the yes/no recommendation from the plebiscite, then I as a full-grown, native-born, native-educated, Canadian Monarchist of British ancestry will recommend a Unilateral Declaration of Canadian Sovereignty Transfer from Her Majesty to the Citizens of Canada collectively (unless of course Her Royal Highness chose to proclaim that on her own).


Addendum
Feb 19/2012
Check the Wikipedia version of ents
http://en.wikipedia.org/wiki/Same-sex_marriage_in_Canada

Politics Blog Top Sites