HARPER DIVIDES AND DELAYS… AGAIN

Smoke and mirrors legislation unworkable – prays on people’s fears

(OTTAWA – Oct 4, 2006) It was reported today that the Conservative government is planning legislation to expand the scope of permitted hate speech against lesbian, gay, bisexual and trans (LGBT) people, to allow persons to refuse to do business with LGBT people, and to permit marriage commissioners to refuse to perform wedding ceremonies for same-sex couples, and that this legislation may further delay a vote on the government’s motion to re-open the equal marriage debate.

“This planned legislation serves no purpose but to divide Canadians and to justify a further delay in holding a vote on re-opening equal marriage,” said Laurie Arron, National Coordinator of Canadians for Equal Marriage. “This is smoke and mirrors legislation. It preys on people’s fears and is constitutionally flawed. When is Mr. Harper going to leave us alone and move on?”

“Two-thirds of Canadians consider equal marriage to be settled and want to move on,” Mr. Arron continued. “It’s unfair to leave this uncertainty hanging. It’s time for Mr. Harper to get on with it, rather than delaying to please the religious right.”

Just a few weeks ago Mr. Harper had planned to move forward with the vote in early October but, as Parliament resumed, he announced to his caucus that his government’s motion to re-open the equal marriage debate would be delayed until just before Christmas. Equality opponents want a delay because they know Parliament is poised to defeat this motion. (Details)

Mr. Harper announced last June that he would hold a vote in the fall. (Details)

Polls have consistently shown that two-thirds of Canadians are against re-opening the divisive equal marriage debate. (Details)

Over 10,000 same-sex couples have been married in Canada in the over three years since Ontario first began issuing them marriage licences. (Details)

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LEGAL BACKGROUNDER

Section 319(3) of the federal Criminal Code exempts religiously motivated hate speech from prosecution. Such exemptions were strengthened in 2004 when the Code was amended to protect against hate speech based on sexual orientation. Hate speech based on gender identity is not prohibited under the Code.

The division of powers section of the Canadian Constitution grants the federal government power over the definition of marriage [s.91(26)], but all power over solemnization of marriage, including marriage commissioners, rests with the provinces [s.92(12)]. This was made clear by the Supreme Court in the Reference re Same-Sex Marriage. It ruled that a section of the then-proposed legislation dealing with the freedom of officials to refuse to perform marriages not in accordance with their religious beliefs “can have no effect” because “only the provinces may legislate exemptions to existing solemnization requirements” (see paragraphs 37 and 38 of the decision).

The Supreme Court also said that clergy and religious organizations are protected from performing any marriages that go against their religious beliefs, from renting out their sacred space for such marriages, and from being compelled to do anything to assist with such marriages (see paragraphs 58 – 60).

Human rights protection is also a provincial matter under s.92(13) of the Constitution. The federal government has only a very limited jurisdiction in areas of federal responsibility like telecommunications and aviation.

Opponents of equal marriage have cited cases in British Columbia and Manitoba to support their claim that including same-sex couples in civil marriage threatens religious freedom, and that when equality and religious freedom conflict, courts favour equality. In fact, the B.C. complaint against the Knights of Columbus shows that freedom of religion is fully protected, and the Manitoba complaint against a Mennonite summer camp has nothing to do with equal marriage.

In the Knights of Columbus case, the B.C. Human Rights Tribunal ruled that even quasi-religious organizations like the Knights are protected by the Charter of Rights and Freedoms and do not have to rent their halls for weddings or receptions of same-sex couples. Because the Knights agreed to rent the hall, signed a contract to that effect, and then cancelled the contract after the couple had gone ahead with their plans, they were fined for treating the couple unfairly. However, the precedent is clear – the Knights’ policy not to rent to same-sex couples is legal. So this is a case of freedom of religion trumping equality, not the other way around.

The Manitoba summer camp case has nothing to do with marriage. It’s about a lesbian and gay choir who had their booking cancelled by a Mennonite-owned summer camp. The complaint was settled amicably without a hearing, so it set no legal precedent, let alone one related to equal marriage.