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How to steal a democracy in broad daylight Print E-mail
Written by Link Byfield   
Monday, 28 February 2005

If you enjoy movies about smooth, artistic master criminals, you should catch the debate in Parliament these days over same-sex marriage.

The Liberals are pulling off one of their periodic brilliant heists of Canadian rights and freedoms.

They are claiming that gay marriage is an established legal right, and that anyone who disagrees (which is most Canadians, according to the polls) is "against the Charter."

Question: If the right of homosexuals to marry is already established, why is there a government Bill before Parliament to establish it?

Because, says the government, lower courts have legalized gay marriage in only seven provinces, and the Bill will make it legal in all ten.

But if rights are something judges decide, not MPs, surely there should be a test case before the Supreme Court, not a Bill before Parliament. What has the Supreme Court said about gay marriage?

Well, believe it or not, in its last actual ruling ten years ago, the Supreme Court held that "Marriage. . . is by nature heterosexual."

And for good measure, Parliament voted by a huge majority in 1999 for a resolution saying they would keep it that way.

In fact, the Liberal cabinet (including Anne McLellan and Paul Martin) promised to opt out of anything the courts might say to the contrary--"to take all necessary steps within the jurisdiction of the Parliament of Canada to preserve this [traditional] definition of marriage."

Well, okay, but now the seven lower courts completely ignored and contradicted Parliament and the Supreme Court by saying homosexual marriage is a Charter right. What did the Supreme Court say to correct the lower courts?

Nothing, because the federal government decided not to appeal those cases.

Why on earth not?

Good question.

Why didn't Parliament exercise its own Charter right to opt out the seven lower court decisions, as MPs promised to do in 1999?

Another good question. Instead, the government drafted a Bill to legalize same-sex marriage, and asked the Supreme Court for permission to pass it -- an unheard-of request.

And what did the court say?

The Supreme Court said Parliament could pass the Bill if it wants, but it refused to answer whether the traditional restriction to man and woman is "against the Charter."

So why does Justice Minister Irwin Cotler keep saying it is?

Because that's how he chooses to see it. He wants all social controversies removed from Parliament and passed to the judges. He told the Western Standard (Feb. 28 edition) "I am opposed to invoking the notwithstanding clause on principle [i.e. Parliament's Charter right to overrule the courts]." So he's flouting the Charter while claiming to defend it.

And Martin keeps saying and doing the same.

By taking this tack, they're trying to cut out all the MPs we elect to Parliament, and transfer ultimate authority to the judges they themselves appoint to the superior courts.

In most countries this sort of coup d'etat has to be done with guns. Here all it takes is a slogan--"Defend the Charter!"--even while you pervert and wreck it.

Like a brilliant heist in a movie, it's hard not to admire how clever they are. Except that it just happens to be our democracy they're stealing.

- Link Byfield

Link Byfield is chairman of the Edmonton-based Citizens Centre for Freedom and Democracy, and an Alberta senator-elect.
"Just Between Us" is a feature service of the Citizens Centre for Freedom and Democracy. The purpose of the Citizens Centre is to enhance freedom and democracy by enabling ordinary citizens to become active and effective on important issues outside the normal processes of party politics.

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