I just finished watching the English language leadership debate that was on TV last night (I was away at our company Christmas dinner last night, so I had to tape it.) I’d have to say that the format was pretty decent, and it was moderated fairly well. All parties had at least a couple of good ideas, that I hope will be implemented after the next Canadian government is elected; but on the whole, I must say that Mr. Harper and the Conservative party had the best solutions and hold to a position that I would most agree with. It’s always interesting to watch a debate in which a separatist party takes part, but I don’t think the Bloc Quebecois really brought anything new to the table.

Aside from the other issues, the questions about the same-sex marriage issue is probably at the forefront of my mind as it concerns the election. It is true that the Liberal government’s sponsorship scandal has stained the political atmosphere here, and that there are other issues to debate, but in the end, on most of these other issues there is not much of a difference between what the parties are proposing (except, perhaps for the childcare issue). I cannot, in good conscience, vote for a party that will not stand up for proper moral values.

The main question at issue here was whether or not Mr. Harper would invoke the Canadian Charter of Rights and Freedoms’s notwithstanding clause to defeat the same-sex marriage bill that was passed under the direction of the Liberal party (despite the more that 2 million letters by Canadian voters to their MPs to retain the previous, traditional definition, and the fact that the majority of Canadians disagree with same-sex marriage). The responses were interesting, but not unexpected.

Mr. Harper pointed out that the Supreme Court of Canada ruled (essentially) that the issue was not a Constitutional issue and that the government had the right to change or keep the definition as it saw fit. It therefore follows that there would be no need to invoke the notwithstanding clause, since one would not be going against the Constitution to change the definition back to the proper definition, but would be merely overturning the previous governments decision on the matter.

There was a unanimous response by the other three parties involved, the Liberals, the NDP, and the Bloc, that the issue had already been decided in parliament (although they wouldn’t mention that it wasn’t exactly a free vote – according to Mr. Martin, he and not his elected MPs gets to decide what his party believes because Canada voted for him last election, even though it was a minority victory). They all agreed that the matter was a matter of the fundamental rights of individuals and therefore must be guaranteed by the Canadian Charter of Rights and Freedoms. Therefore, if they say it is, it must be a Constitutional issue – and therefore the Conservatives would have to invoke the notwithstanding clause to change it. (Contorted logic? Yes. But this is politics…)

Enter the Canadian Charter of Rights and Freedoms (part of the Constitution Act of 1982): there are two and only two sections which could ever have any relevance to this issue:

  1. Everyone has the following fundamental freedoms:

    1. freedom of conscience and religion;

    2. freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication;

    3. freedom of peaceful assembly; and

    4. freedom of association.

and:

  1. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Now, “homosexual rights” do not fall under section two, since homosexual practice is not a religion, it is not merely a thought or opinion, it is not a peaceful assembly, or a mere association. Freedom of conscience is the freedom to abstain from the participation in something if it goes against your conscience, not the freedom to do whatever you want as long as it doesn’t grate on your conscience. And besides this, this section deals with freedoms, not discriminations.

Nor does the traditional definition of marriage go against equality under the law, and this for a couple of reasons:

  1. Sexual preference is not listed under those groups identified specifically by this section. Of all those groups identified under section two, all but one are factors that are clearly physical, and not moral characteristics of an individual. The other one is religion, which is specifically identified as being protected under section two of the Charter.

  2. If the moral characteristic of an individual should be guaranteed under section 15, then all moral characteristics should be subject to the same guarantee of freedom. This would clearly open the door for incestuous marriages and perhaps other types. In fact, it would be difficult to determine what could or could not be legislated against, since many of our laws rightly legislate against immoral actions.

The only way for homosexuality to be a guaranteed right in the Canadian Charter of Rights and Freedoms therefore is to have the Charter changed to specifically include those rights. It is not enough just for the government to proclaim it a right, since the Charter does not leave the door open in any way for this “interpretation” to be given it. Sexual preferences can’t just need to be read into the Charter, they need to be forced into it by those who try to read it in this way.

So the majority of the politicians, other than Mr. Harper, are decidedly wrong in their belief that this is a Constitutional rights issue, and this fact was supported by the decision of the Supreme Court of Canada. This prompted the second question: who’s responsible in our government to determine what the Constitution actually says in our country: the elected government at the time, or the Supreme Court of Canada and its rulings?

Now this one really took me aback, and I believe for good reason. The responses received were obviously coloured by what each politician viewed should occur with this specific issue and how the Supreme Court ruled, not with the law in general. Here are the responses:

Mr. Layton of the NDP: the elected government at the time

Mr. Martin of the Liberals: the elected government at the time

Mr. Duceppe of the Bloc Quebecois: the elected government at the time

Mr. Harper of the Conservatives: the Supreme Court of Canada

Now, I must wonder what, if anything is the Supreme Court of Canada there for, if not to properly interpret the meaning of the Constitution? I’m sorry, but if the Supreme Court rules that something is Constitutional that is what we have to go by – that is its primary function. If its rulings are not correct, why do we even have them? The Constitution is the cornerstone of our government and cannot simply be interpreted and added to willy-nilly by whoever has the power at the time. If the government does not believe the Supreme Court has judged according to how the Constitution should read, they must change the Constitution itself to reflect this and that requires a whole lot more than just pretending that they can do whatever they want with it.

There is a very specific process required to change the Constitution and it has been put in place specifically to prevent the ruling party from tearing down what is in it without the clear and determined consensus of the citizens of Canada. If it were not so, it would be easily abused and could be thrown out at the tip of a hat. Mr. Martin did not have the majority of Canadians on his side when he decided that his view of “rights” was everybody’s view. And he certainly did not have the Constitution backing him up.

Sigh. Politics and politicians. At least I know who I’m voting for.

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