The debate over homosexual marriage in this year’s federal election highlighted a deep division between the two major parties’ views on the role of the legislature and the proper interpretation of the Charter of Rights.
Although “sexual orientation” is not mentioned in the Charter, and its inclusion was specifically rejected by the drafters, activist judges in the Supreme Court read it in in 1995. Prime Minister Paul Martin came out in favour of same-sex “marriage” during the campaign, saying, “There is no way that anybody should be allowed to discriminate or prevent same-sex marriage,” strongly agreed with the court’s interpretation. Calling the Charter “one of the fundamental pillars of our democracy,” he turned to the Supreme Court to define those rights, refusing to withdraw his party’s reference to the court on the marriage question.
In a CBC interview, Martin explained that what tipped the balance (towards his support of same-sex “marriage”) was clearly that the courts said this is a Charter right. “I really believe that in a nation of minorities, which is what we are, that you cannot allow minority rights to be infringed on and the guarantor of that is the Supreme Court of Canada.”
Stephen Harper took a different approach, one emphasizing the decision-making role of Parliament. “I prefer the traditional definition of marriage, but I’m willing to accept the decision of parliamentarians,” he said. “Mr. Martin decided to submit this issue to the Supreme Court because he’s not able to face his own caucus, where supporters of traditional marriage elected Mr. Martin as their leader.”
Harper further indicated that he would use the notwithstanding clause to protect Parliament’s decision-making power, although he did not say whether he would use the notwithstanding clause in the case of marriage. “What I’ve said is that the notwithstanding clause is a legitimate part of the Constitution and can be applied. I think it should always be used prudently.”
Martin refused to back Parliament, saying, “I would not use the notwithstanding clause. And if you’re prepared to use the notwithstanding clause, then what you’re saying essentially is minority rights can be subjected to the will of the majority.”
Martin’s comments perhaps hinted at a more fundamental clash of values behind the disagreement. Martin claimed Harper’s views indicated that, “The Conservative party would make impulsive and widespread use of the notwithstanding clause to rescind the fundamental rights of Canadians.” Gay advocacy groups joined him in making the accusations. Gilles Marchildron, executive director of EGALE Canada, said, “If the Conservative party gains the power to implement this agenda, no one’s rights would be secure.”“This is more than about the right to marry,” added Laurie Arron, EGALE’s director of advocacy. “This is about ending the stigma of homosexuality.”