Strictly a legal question. Any political debate can go in the nice thread on Canadian politics that’s currently active in GD.
Let us suppose that we go to the polls in the next few months, and let us further suppose that the Tories form the new government. Finally, let us suppose that Harper manages to pass the sort of marriage legislation he’s been talking about, in which he will “protect all the rights of same-sex couples but preserve the traditional definition of marriage.” (not an exact quote, but near enough) For the record, I think there’s pretty good odds of this happening if the Liberals were to allow their caucus to vote freely on the matter.
What impact would this legislation have on the current states of affairs in those provinces where the courts have ruled that allowing same-sex marriages is required by the Charter? Would the legislation be null and void in those provinces right off the bat? Or would it be presumed to be constitutional until challenged, requiring a whole new round of court cases?
In order for the Conservatives to outlaw same-sex marriage in Canada they would need to invoke the notwithstanding clause. It’s never been done at the federal level before, and it would need to be renewed every five years. If the current bill doesn’t pass all it means is that the current process of province by province court action will continue.
That’s not the question, though. The question is, what happens if Harper were to pass the legislation he says he wants to. I fully agree the courts would strike it down, but I’d like to know if it would temporarily reverse the situation in provinces that already have same-sex marriage.
We’re supposing here that C-38 dies due to Parliament being dissolved before its voted on.
It’d be the same as if it didn’t pass. Court action would continue on a province by province basis. Alberta is the only province were the gov’t would try to fight the court challenges. Ralph Klein would take his case all the way to the Supreme Court if he had the chance.
Good question - don’t know the answer. The general rule is that a law is in force unless or until repealed or held to be unconstitutional. So a new statute would presumably be in force.
However, the courts have held that if a party challenges the constitutionality of a statute, in some cases they can get injunctive relief to prevent the statute from operating prior to trial. That might be an option for individuals opposed to the new statute, but the test for injunctive relief in these cases is pretty high, as held by the Supreme Court in Harper v. Canada (Attorney General). (Yes, that Harper!)
How that would work out in the hypothetical you propose is anyone’s guess.