C 38 UNCONSTITUTIONAL

Suite 610, Justice Bldg.
House of Commons
Ottawa, ON K1A 0A6
Tel (613) 992-1899
Fax (613) 992-3085
Vellacott.M@parl.gc.ca
www.mauricevellacott.ca
HOUSE OF COMMONS
CANADA
Maurice Vellacott, MP
Saskatoon-Wanuskewin
Vellacott warns of ruinous lawsuits against his constituents if C-38 passes
For Immediate Release April 29, 2005

OTTAWA – Canadian lawyers with expertise in human rights and constitutional law are urging Members of Parliament to vote against the Liberal government’s anti-constitutional Bill C-38. In a letter being sent to all MPs and Senators today, and printed in part in the National Post, these lawyers cite a legal opinion provided by the law firm of Lang Michener LLP warning about the risk the bill poses to the constitutionally protected freedoms of religion and conscience.

Lang Michener LLP was asked if there was a genuine risk in the wake of Bill C-38 that religious groups or officials who refuse to solemnize a marriage could become the subject of actions by others. They answered in the affirmative. These lawyers conclude: “There is little doubt that, if passed, Bill C-38 will be used by provincial governments and others to override the rights of conscience and religion of ordinary Canadians. Public officials will in all likelihood lose their employment simply because of their conscientious convictions. It is our view that your constituents, including religious groups and the members of religious groups, will face expensive and ruinous lawsuits if Bill C-38 becomes law.”

“I concur with that assessment,” said Conservative Party MP Maurice Vellacott (Saskatoon-Wanuskewin). “The federal government has no power to protect the freedom of religious groups or officials to refuse to perform marriages that are not in accordance with the group's religious beliefs. The level of incompetence and irresponsibility of this Liberal government knows no bounds. They know that changing the definition of marriage puts religious liberty at risk, and they see the flagrant abuses of provincial governments against marriage commissioners in jurisdictions such as my own province of Saskatchewan as a result of same-sex marriage, yet they are intent on moving forward with this agenda.”

The Canadian human rights and constitutional law lawyers also highlight the activist nature of Paul Martin’s and Irwin Cotler’s anti-marriage bill, pointing out that the Supreme Court reference decision imposed no obligation on the federal government to change the definition of marriage. “Canadians are still waiting for the Prime Minister to come clean as to the real agenda behind Bill C-38,” said Vellacott. “Everywhere you turn, people are exposing the foolishness of his claim that the Supreme Court and Canadian human rights law require this change.”

“The Liberal government’s disrespect for fundamental constitutional rights is simply an extension of their corruptness and complete disdain for voters as uncovered by the Gomery Commission,” added Vellacott. “I urge all MPs to take seriously the advice of these lawyers, which is ‘to carefully consider and vote against Bill C-38. The Supreme Court of Canada has clearly left this option open to Parliament.’”

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For further information, call (306) 975-4725 or (613) 992-1966.

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National Post - 2005-04-29
'Victory' for foes of same-sex marriage
Expert opinion: 'Gay rights not protected under the Charter'
By Heather Sokoloff

Opponents of same-sex marriage claimed a major victory yesterday after a respected constitutional expert issued the legal opinion that Parliament could define marriage as a union between a man and a woman without contravening the Supreme Court's comments on the issue.

According to Eugene Meehan, a former national president of the Canadian Bar Association and former executive legal officer of the Supreme Court, Canada's highest court has not required Parliament to amend the traditional definition, nor has gay marriage received protection under the Charter of Rights and Freedoms.

Mr. Meehan also says the federal government has no power to protect religious officials who do not want to perform gay marriage from human rights complaints, as such powers rest with the provinces.

A summary of Mr. Meehan's opinion will be sent to MPs across the country today by a group of 30 lawyers urging parliamentarians to vote against the government's change to the traditional definition of marriage, Bill C-38.

"There is no reason to believe that the Supreme Court of Canada decision should lead a parliamentarian to conclude that they have no option ... but to vote for the legislation," says Gerald Chipeur, a Calgary lawyer and spokesman for the group. Mr. Chipeur says Paul Martin, the Prime Minister, and Irwin Cotler, the Justice Minister, have been misleading Canadians by suggesting that a vote against same-sex marriage would contravene the Supreme Court or require the use of the Charter's notwithstanding clause.

In January, a group of 134 law professors banded together and accused Stephen Harper, the Conservative leader who opposes same-sex marriage, of misleading the public by suggesting Parliament could outlaw gay marriage without invoking the Constitution's notwithstanding clause. In a letter, the professors said to Mr. Harper: "It leads us to suspect that you are playing politics with the Supreme Court and the Charter." But according to Mr. Chipeur, it was the lawyers who were playing politics and, as a result, many Canadians mistakenly believe same-sex marriage was forced on Ottawa by the Supreme Court.

In December, 2004, the Supreme Court said the federal government could change the definition of marriage - but declined to rule on a question of whether the current definition of marriage as a man and a woman is unconstitutional. Both opponents and advocates of same-sex marriage called the non-binding ruling a victory. The federal government has never appealed lower court rulings that provided Charter justification for same-sex marriage. "We felt a duty as lawyers to ensure that both sides of the legal question are addressed," said Mr. Chipeur.

The legal opinion says that Parliament would be consistent with previous Supreme Court rulings if it decided that restricting marriage exclusively to the union of a man and a woman would serve the best interests of children. However, Mr. Meehan added, in a caveat to his opinion, proving such a position to the courts "will not be an easy constitutional or evidentiary task. "Of course," he added, "these concerns do not imply that cogent arguments addressing these issues/questions could not sway a court."

Mr. Meehan also casts doubt on Ottawa's assurances those who do not support same-sex marriage because of their religious beliefs will be protected. "A same-sex couple denied the right to hold their wedding ceremony in a particular hall could lodge a complaint before the relevant provincial human rights commission, alleging discrimination on the basis of sexual orientation, even though the refusal was based on religious grounds," Mr. Meehan stated in his opinion. He also noted that Manitoba recently informed marriage commissioners their licences would be revoked if they did not perform same-sex marriages.

Mr. Meehan, chairman of the Supreme Court Practice Group at Ottawa law firm Lang Michener LLP, was retained by the lawyers. He is not affiliated with any political party and did not give an opinion on whether the government ought to legalize gay marriage or not.

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OPEN LETTER

National Post - April 29, 2005
An open letter on gay marriage
What follows is an edited excerpt of a letter that will be sent today to all Canadian MPs and Senators.

Dear Members of Parliament and Senators:

We, the undersigned legal counsel, maintain active practices or academic interest in litigation, human rights, religious, charity or constitutional law. We have reviewed two constitutional opinions provided by the law firm of Lang Michener LLP, on the subject of Bill C-38, the federal government's proposed legislation to legalize same-sex marriage. What follows is a summary of the firm's main conclusions, followed by our own observations.

QUESTION Does the recent Same-Sex Marriage Reference opinion of the Supreme Court of Canada ("Reference") require Parliament to amend the common-law definition of marriage?

ANSWER No. The answers provided in a federal reference are an advisory opinion only to the Governor in Council. In addition, in the Reference, the Supreme Court did not address the question of whether an opposite-sex definition of marriage would fail to meet Charter requirements.

QUESTION Should it be the case that the purpose of the common-law definition of marriage arose out of "Christendom," (as discussed in paragraphs 21 and 22 of the Reference), is it consistent with constitutional precedent for Parliament to nevertheless define marriage as the union of one man and one woman for life to the exclusion of all others, so long as the purpose is secular and consistent with the Charter?

ANSWER Yes. Legislation pertaining to the legal capacity for civil marriage falls within the subject matter of section 91(26) of the Constitution Act, 1867, which pertains to the exclusive legislative competence of Parliament.

QUESTION Would Parliament be acting consistent with jurisprudence if it justified a statutory definition of marriage to one man and one woman on the basis that it would serve the best interests of children and to create a public institution that makes it more likely that a child will be raised by the child's own mother and father?

ANSWER Yes. The Supreme Court has previously recognized the importance of protecting the best interests of children in a variety of contexts.

QUESTION Should Bill C-38 be enacted as proposed, does Parliament have the constitutional jurisdiction to protect by statute the freedom of religious groups or officials to refuse to perform marriages that are not in accordance with the group's religious beliefs?

ANSWER No. Provincial governments, pursuant to section 92(12) of the Constitution Act, 1867, have exclusive jurisdiction with respect to the solemnization of marriage.

QUESTION If Bill C-38 is enacted, could religious groups or officials who refuse to solemnize a marriage become the subject of actions by others?

ANSWER Yes. A putative same-sex spouse who is refused a marriage licence or a place to hold a wedding would have a variety of options to assert his/her rights.

QUESTION Does Parliament have the power through Bill C-38 or otherwise to protect religious groups or officials from the actions referred to above?

ANSWER No. The Parliament of Canada cannot protect religious groups or officials from the actions referred to above because the solemnization of marriage lies within the exclusive competence of the provinces.

In the opinion of the undersigned, Lang Michener has correctly stated the law in Canada today. There is little doubt that, if passed, Bill C-38 will be used by provincial governments and others to override the rights of conscience and religion of ordinary Canadians. Public officials will in all likelihood lose their employment simply because of their conscientious convictions. It is our view that your constituents, including religious groups and the members of religious groups, will face expensive and ruinous lawsuits if Bill C-38 becomes law.

We therefore urge each Member of the House of Commons and the Senate to carefully consider and vote against Bill C-38. The Supreme Court of Canada has clearly left this option open to Parliament.

Sincerely,

Gerald D. Chipeur, on behalf of: Peter J. Anderson, Owen B. Griffiths, Dallas K. Miller Q.C., John M. Banfill, Joseph P. Hamon, Benton Mischuk, Ivan Bernardo, David W. Hooley Q.C., Valerie A. Hazlett Parker, Norm Bosse, Paul Jeffrey, Nancy Pearson, Patrick J. Boyle, James H. Johnson, Ruth A.M. Ross, Janet Epp Buckingham, Brian Kempster, David Ryan, Barry Bussey, Walter W. Kubitz, Jeannette Savoie, Jonathan Denis, Allen D. Leschert, Tom Schuck, Dale Wm. Fedorchuk, Ronald McDonald, Cindy Silver, Walter Fox, Anne E. McTavish, Frank de Walle, Mark R. Frederick, Michael Menear.