If he becomes the Prime Minister, Harper would have the right to cancel the Reference and undoubtedly would do so. That will not affect same sex marriage in the three provinces where it exists.

If there was a strong vote against equal marriage, it would have no impact on the three provinces that have equal marriage. However, it would mean people in the other provinces would have to start new litigation in order to achieve equal marriage in their province.

Adovcacy News - Harper reduces Charter to empty words

June 3, 2004

Harper reduces Charter to empty words
PM candidate ignores constitutional democracy
By Douglas Elliott

"I am confident that if the Parliament expresses its views clearly on this, which is something that Parliament refused to do under the Liberals, then I am quite certain that the Supreme Court will understand that and respect Parliament's competency to deal with such a matter."
Stephen Harper, leader of the Conservative Party (Globe and Mail, June 3, 2021)

As Stephen Harper [leader of Canada's Conservative Party] is fond of pointing out, he is an economist, not a lawyer. His comments on same-sex marriage may have demonstrated again his apparent ignorance of how the court system works. His ignorance is perhaps surprising given that he has been in the process himself.

Despite his regular diatribes about judicial activism, it should be noted that Harper brought a case to court against the government. He was seeking to have the judges interfere with Parliament's decisions by striking down a law that limits spending by rich special interest groups during elections. Harper has no problem with judicial interference with the will of Parliament so long as it is advancing his neo-conservative agenda.

If he becomes the Prime Minister, Harper would have the right to cancel the Reference and undoubtedly would do so. That will not affect same sex marriage in the three provinces where it exists.

If there was a strong vote against equal marriage, it would have no impact on the three provinces that have equal marriage. However, it would mean people in the other provinces would have to start new litigation in order to achieve equal marriage in their province. Eventually, one of those cases would be likely to reach the Supreme Court of Canada. The Supreme Court of Canada would consider the results of any vote in Parliament, but they would never "back off" based on the plurality of the vote. The interpretation and application of the Charter is not based on majority rule, and having an even bigger majority does not change that.

The only thing Harper seems to understand about the Charter is the notwithstanding clause. I have no doubt that he would use it regularly to impose his neoconservative anti-Charter values if he had a majority government.

Harper's handlers have been keeping him under control so that he does not reveal his reactionary social agenda and lose the momentum he currently is enjoying. However, there have been some loose lips from some of Harper's team. Comments against bilingualism and a woman's rights to choose reveal to us that we are seeing the same old Reform dinosaurs in a shiny new package.

Bob Smyth of the group Canadians for Equal Marriage, right, was punched last election by a Conservative party thug during a rally for Stephen Harper in Guelph, Ont. ("Old Issues Continue to haunt Harper", Globe and Mail, June 3, 2004, Photo by CP)

Perhaps Mr. Harper is talking in coded language to his natural constituency and he is telling them he will use the notwithstanding clause to end equal marriage in our country. If he has a majority, he could do that, and I believe he would do that, to the everlasting shame of our country.

Fortunately, the notwithstanding clause is only in effect for five years and then must be renewed. This time limit was deliberately constructed so that any government who used it would have to face the voters before they could renew its use. I would hope that the people of Canada, who have a strong sense of fairness, would throw out any government who used the notwithstanding clause for this purpose.

Time is on our side because young people overwhelmingly support gay marriage. We need to encourage them to get out and vote against the reactionary policies of Harper.

I know that a lot of people are angry with the Liberals. However, the last time the people of Ontario decided to vote against a government without thinking through what the alternative was, we ended up with 8 years of Mike Harris. I would urge people to vote strategically.

If the NDP has a good chance of winning your riding and the Tory has no chance, especially where the Liberal does not support equal marriage, vote NDP. That is the case in my riding where I am supporting Jack Layton. In ridings where a vote for the NDP means that there is a serious risk that a Tory will be elected, hold your nose and vote for the Liberal.

No self respecting supporter of equal marriage could possibly vote for a Tory party under Harper's leadership, regardless of the position of their local Tory candidate. Just ask Joe Clark.

Douglas Elliott is a founding partner in Roy Elliott Kim O'Connor LLP and President of the International Lesbian and Gay Law Association. He represented the Metropolitan Community Church of Toronto, and our marriage, in the Ontario marriage case.