Advocacy News - Harper is not being
"completely honest"
January
25, 2005 (updated with media quotations on Jan. 27, 2005)
Harper
is not being "completely honest" Challenge
from 133 experts in Canada's universities
"Have
we no respect for the rule of law? . . . We are supposed to be the party that
stands for the rights of individuals. Times have changed and it's time we changed
with them." Marie-Josee Lapointe, former press secretary to Tory Prime Minister
Brian Mulroney, "Harper's gay marriage strategy exposes rift among Conservatives",
CP, Jan. 27, 2005
Stephen
Harper, leader of the Conservative Party, is not being "completely honest"
with Canadians about his strategy to fight same-sex marriage. His disingenuous
approach conveniently ignores the unconstitutional foundation it is based on.
The
Vancouver Sun (Jan.
24) and Toronto
Star (Jan. 25) call Harper's approach a "dishonest strategy".
The Victoria Times Colonist (Jan. 25, 2005) wrote of "hollow brinkmanship
... He should acknowledge, therefore, that if Parliament denies same-sex marriage
rights to all Canadians, the courts will give it to them."
This
afternoon in a news conference Harper confirmed he won't use the notwithstanding
clause, and he claims his party has "sought legal advice" and Conservative
party lawyers support his strategy. Harper apparently should send his lawyers
back to school.
Today
133 law
professors, including Deans of Law, from Canada's universities, coast to coast,
issued a letter challenging Harper to drop the pretense and deliver some straight
talk about gay marriage. Harper has a long history of hidden agendas, apparently
lacking the courage to be upfront about his radical right-wing agenda aimed at
attacking Charter rights and freedoms.
Open
Letter to The Hon. Stephen Harper from Law Professors Regarding Same-Sex Marriage
The
Hon. Stephen Harper Leader of the Opposition
Dear
Mr. Harper,
The
federal government has made it clear that it intends to introduce legislation
in the House of Commons to extend to same-sex couples the right to marry. You
have indicated that you oppose this legislation, and intend to propose amendments
to limit the definition of marriage to only opposite sex couples. You also stated
that it would not be legally necessary to use the Charter's notwithstanding clause
to protect a statutory definition of marriage that excludes same sex couples.
As law professors, we strenuously disagree. You must be completely honest with
Canadians about the unconstitutionality of your proposal, which will only guarantee
that same sex marriage ends up back before the courts as opposed to being resolved
by Parliament. Your position is surprising for someone who has constantly defended
the preeminence of Parliament.
Even
though the Supreme Court of Canada did not address this issue in the recent same-sex
marriage reference, courts in British Columbia, Saskatchewan, Manitoba, Newfoundland,
Ontario, Quebec, Nova Scotia and the Yukon are now unanimously of the view that
a definition of marriage that excludes same-sex couples is unconstitutional. The
consensus of constitutional experts is that these decisions are correct. You must
explain to Canadians how your plan to entrench the traditional definition of marriage
will pass constitutional muster. The truth is, there is only one way to accomplish
your goal: invoke the notwithstanding clause. Premier Klein has been honest with
Canadians on this subject. You must be completely candid with Canadians as well.
If
Parliament were to adopt your proposal and define marriage to exclude same sex
couples, this legislation would very quickly end up in court, and be struck down
as unconstitutional. However, the Charter allows Parliament to have the last word
on many issues of fundamental rights, through the notwithstanding clause. Frankly,
we do not think this is an appropriate case for the use of this extraordinary
provision. However, if you believe that same-sex couples should be prohibited
from getting married, you should propose legislative amendments that include a
notwithstanding provision.
The
fact that you want Parliament to enact clearly unconstitutional legislation and
adopt the traditional definition of marriage without using the notwithstanding
clause leads us to suspect that you are playing politics with the Supreme Court
and the Charter. The use of the notwithstanding clause would have to be justified
to Canadians, who overwhelmingly support the Charter. Not using the notwithstanding
clause therefore protects opponents of same sex marriage from political controversy.
And if the Supreme Court judgment struck down the opposite sex definition of marriage,
opponents of same sex marriage would blame the Court for challenging Parliament's
will.
In
short, those who oppose same sex marriage without supporting the use of the notwithstanding
clause are shifting political accountability from themselves to the Supreme Court.
Rather than ending the Supreme Court's involvement, it would further embroil the
Court in this issue. You should either invoke the use of the notwithstanding clause,
and justify this decision to Canadians, or concede that same-sex marriage is now
part of Canada's legal landscape. If you intend to override Canadians' constitutional
rights, you at least owe it to them to say this openly and directly. Canadians
deserve better.
Sincerely,
Professor
Sujit Choudhry, Faculty of Law, University of Toronto Professor Jean-François
Gaudreault-DesBiens, Faculty of Law
Additional
co-signers:
Professor
Wendy Adams, Faculty of Law, McGill University Professor Sharryn Aiken, Faculty
of Law, Queen’s University Professor Jennifer Bankier, Faculty of Law, Dalhousie
University Professor Benjamin Alarie, Faculty of Law, University of Toronto Professor
Reem Bahdi, Faculty of Law, University of Windsor Professeur André Bélanger, Faculté
de droit, Université Laval Professor D. G. Bell, Faculty of Law, University of
New Brunswick Professeure Marie-Claire Belleau, Faculté de droit, Université Laval
Professor Benjamin Berger, Faculty of Law, University of Victoria Professor Jeff
Berryman, Faculty of Law, University of Windsor Professor W. A. Bogart, Faculty
of Law, University of Windsor Professeur Thierry Bourgoignie, Département des
sciences juridiques, UQAM Professor Susan Boyd, Faculty of Law, University
of British Columbia Professor Kim Brooks, Faculty of Law, University of British
Columbia Professor Jutta Brunnée, Faculty of Law, University of Toronto Professor
Karen Busby, Faculty of Law, University of Manitoba Professor Gillian Calder,
Faculty of Law, University of Victoria Professor Angela Campbell, Faculty of Law,
McGill University Professor Timothy Caulfield, Faculty of Law, University of Alberta
Professor Aloke Chatterjee, Faculty of Law, University of New Brunswick Professor
Rebecca Cook, Faculty of Law, University of Toronto Professor Brenda Cossman,
Faculty of Law, University of Toronto Professeure Gisèle Côté-Harper, Faculté
de droit, Université Laval Professor Steve Coughlan, Faculty of Law, Dalhousie
University Professor Carys Craig, Osgoode Hall Law School, York University Professeur
Francois Crépeau, Faculté de droit, Université de Montréal Professor Robert
J. Currie, Faculty of Law, Dalhousie University Professeur Hugo Cyr, Faculté de
science politique et de droit, UQAM. Dean Ronald Daniels, Faculty of Law, University
of Toronto Professor T. Brettel Dawson, Department of Law, Carleton University
Professor Maneesha Deckha, Faculty of Law, University of Victoria Professeure
Édith Deleury, Faculté de droit, Université Laval Professor Thomas J. Denholm,
Faculty of Law, University of Windsor Professor Richard Devlin, Faculty of Law,
Dalhousie University Professor Aaron Dhir, Faculty of Law, University of Windsor
Professor Bernard Dickens, Faculty of Law, University of Toronto Professor Meinhard
Doelle, Faculty of Law, Dalhousie University Professor Susan Drummond, Osgoode
Hall Law School, York University Professeur Nicole Duplé, Faculté de droit,
Université Laval Professor David G. Duff, Faculty of Law, University of Toronto
Professor David Dyzenhaus, Faculty of Law, University of Toronto Professor Lisa
Karen Fainstein, Faculty of Law, University of Manitoba Professor Angela Fernandez,
Faculty of Law, University of Toronto Professor M. Michelle Gallant, Faculty of
Law, University of Manitoba Professor Daphne Gilbert, Faculty of Law, University
of Ottawa Professor Joan Gilmour, Osgoode Hall Law School, York University Professeure
Michelle Giroux, Faculté de droit, Section de droit civil, Université d'Ottawa
Professor Myron Gochnauer, Faculty of Law, University of New Brunswick Professor
Randal Graham, Faculty of Law, University of Western Ontario Professor Leslie
Green, Osgoode Hall Law School, York University Professor Donna Greschner, College
of Law, University of Saskatchewan Professeure Sylvette Guillemard, Faculté
de droit, Université Laval Professeure Paule Halley, Faculté de droit, Université
Laval Professor Winifred Holland, Faculty of Law, University of Western Ontario
Dean Patricia Hughes, Faculty of Law, University of Calgary Professor
Allan Hutchinson, Osgoode Hall Law School, York University Professor Frederick
Innis, Faculty of Law, University of Manitoba Professeur Pierre Issalys, Faculté
de droit, Université Laval Professor Martha Jackman, Faculty of Law, University
of Ottawa Professor Richard Janda, Faculty of Law, McGill University Professor
Rebecca Johnson, Faculty of Law, University of Victoria Professor Darlene Johnston,
Faculty of Law, University of Toronto Professor Larissa Katz, Faculty of Law,
Queen’s University Professeur Pierre-Claude Lafond, Science politique et droit,
UQAM Professeur Christelle Landheer-Cieslak, Faculté de droit, Université Laval
Professeure Louise Langevin, Faculté de droit, Université Laval Professeur
André Lareau, Faculté de droit, Université Laval Professeure Sophie Lavallée,
Faculté de droit, Université Laval Professeure Nicole LaViolette, Common Law,
Université d'Ottawa Professeur Sébastien Lebel-Grenier, Faculté de droit, Université
de Sherbrooke Doyen Pierre Lemieux, Faculté de droit, Université Laval Professor
Trudo Lemmens, Faculty of Law, University of Toronto Professeure Katherine Lippel,
Faculté de science politique et de droit, UQAM Professor Jennifer Llewellyn,
Faculty of Law, Dalhousie University Professor A. Wayne MacKay, Faculty of Law,
Dalhousie University Professor Patrick Macklem, Faculty of Law, University of
Toronto Professor Audrey Macklin, Faculty of Law, University of Toronto Professor
Kathleen Mahoney, Faculty of Law, University of Calgary Professor Carissima Mathen,
Faculty of Law, University of New Brunswick Professor Brian M. Mazer, Faculty
of Law, University of Windsor Professor Heather McLeod-Kilmurray, Faculty of Law,
University of Ottawa Professor Kent McNeil, Osgoode Hall Law School, York
University Professor Errol Mendes, Faculty of Law, University of Ottawa Professor
Armand de Mestral, Faculty of Law, McGill University Professor Sophia Reibetanz
Moreau, Faculty of Law, University of Toronto Professor Mayo Moran, Faculty
of Law, University of Toronto Professeur Christine Morin, Faculté de droit, Université
Laval Professor Ronalda Murphy, Faculty of Law, Dalhousie University Professor
Roxanne Mykitiuk, Osgoode Hall Law School, York University Professor Jennifer
Nedelsky, Faculty of Law, University of Toronto Professor Ken Norman, College
of Law, University of Saskatchewan Professeur Geneviève Parent, Faculté de droit,
Université Laval Professor Debra Parkes, Faculty of Law, University of Manitoba
Professor Karen Pearlston, Faculty of Law, University of New Brunswick Professor
Steven Penney, Faculty of Law, University of New Brunswick Professor Lisa
Philipps, Osgoode Hall Law School, York University Dr. Jo-Anne Pickel, Department
of Law, Carleton University Professor Sukanya Pillay, Faculty of Law, University
of Windsor Professor Michael Pratt, Faculty of Law, Queen’s University Doyen
Daniel Proulx, Faculté de droit, Université de Sherbrooke Professor René Provost,
Faculty of Law, McGill University Professor Melanie Randall, Faculty of Law,
University of New Brunswick Professor Denise Réaume, Faculty of Law, University
of Toronto Professor Arthur Ripstein, Faculty of Law, University of Toronto Professor
Annie Rochette, Faculty of Law, University of British Columbia Professor Carol
Rogerson, Faculty of Law, University of Toronto Professeure Louise Rolland, Faculté
de droit, Université de Montréal Professeur Alain Roy, Faculté de droit, Université
de Montréal Professor Bruce Ryder, Osgoode Hall Law School, York University Professor
Teresa Scassa, Faculty of Law, Dalhousie University Professor David Schneiderman,
Faculty of Law, University of Toronto Professor Jennifer Schulz, Faculty of Law,
University of Manitoba Professor Martha Shaffer, Faculty of Law, University of
Toronto Professor Colleen Sheppard, Faculty of Law, McGill University Professor
Barney Sneiderman, Faculty of Law, University of Manitoba Professor Daniel Soberman,
Faculty of Law, Queen’s University Professor Lorne Sossin, Faculty of Law, University
of Toronto Professor Hamish Stewart, Faculty of Law, University of Toronto Professor
James Stribopoulos, Faculty of Law, University of Alberta Professor David Tanovich,
Faculty of Law, University of Windsor Professor Myra J. Tawfik, Faculty of Law,
University of Windsor Professor Lorna Turnbull, Faculty of Law, University of
Manitoba Professor Marcia Valiante, Faculty of Law, University of Windsor Professeur
Jean-Pierre Villaggi, Faculté de science politique et de droit, UQAM Professor
Rose Voyvodic, Faculty of Law, University of Windsor Professor Rosemary Cairns
Way, Faculty of Law, University of Ottawa Professor Michelle Williams, Faculty
of Law, Dalhousie University Professor John A. Yogis, Faculty of Law, Dalhousie
University Professor Claire Young, Faculty of Law, University of British Columbia
Professor Margot Young, Faculty of Law, University of British Columbia Professor
Frederick Zemans, Osgoode Hall Law School, York University
