"That shoots down the possibility of Alberta invoking the notwithstanding clause (I think)."Alberta can use the notwithstanding clause to legislate about things that are
within its jurisdiction.
For instance, since "property and civil rights" (that "civil rights" doesn't have anything to do with the fundamental rights in the Constitution) are under provincial jurisdiction, Alberta could legislate to make it legal to impose "restrictive covenants" on land ownership so that people could not sell land subject to such covenants to, oh, people of certain races or religions. (Yup, those things used to be legal, here and in the US.) And then it could use the notwithstanding clause to exempt that legislation from the operation of the constitutional Charter of Rights. And that would mean that people (like, property developers) could require anyone who bought land from them to agree never to sell it to, oh, people of certain races or religions,
notwithstanding the equality guarantees in the Charter.
In this case, the thing is (as I was saying a while ago ... and as the federal government agrees) that marriage itself is under federal jurisdiction in the Constitution. Alberta only has jurisdiction over "the solemnization of marriage in the province". If it tried to restrict access to marriage licences to someone who was included in the federal definition of marriage, its law would be void, not because of the Charter, but because it was
ultra vires ("outside the powers of") the province under the constitutional division of powers.
That's why Chrétien has referred the questions to the Supreme Court of Canada on a constitutional reference, asking for clarification of whether the feds have exclusive jurisdiction over the definition of marriage itself.
The plan would be for Parliament to pass a bill expressly recognizing same-sex marriage, if the Court agrees that it has that jurisdiction.
For those interested in today's news, this is how the motion read:
http://www.cbc.ca/stories/2003/09/16/motion_vote030916"That, in the opinion of this
House, it is necessary, in light
of public debate around recent
court decisions, to reaffirm that
marriage is and should remain
the union of one man and one
woman to the exclusion of all
others,
and that Parliament
take all necessary steps within
the jurisdiction of the
Parliament of Canada to
preserve this definition of
marriage in Canada."
The part in italics is understood to be a reference to the notwithstanding clause -- a statement that Parliament would invoke that clause to override any court striking down a ban on same-sex marriage. The Alliance then tried to remove that part, so that Liberals who agreed with them would be more likely to vote for the motion, since it would then just be a motherhood statement and not an attempt to bind Parliament to a course of action that the executive branch, the Liberal leadership, has said it will not take.
The vote to remove that part of the motion tied 134-134. In an unusual event, the Speaker, a Chrétien stalwart of course, cast the deciding vote against the motion to amend -- because in its original form, it would be harder for his own party's renegades to support. The motion itself was then defeated 137-132.
Svend Robinson, the gay New Democrat (social democrat) MP, asked the bozos on the other side of the house how it would affect their marriages if he and his partner were able to celebrate their love by getting married.
;)
.
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