A group of prominent law professors is accusing Conservative Leader Stephen Harper of misleading the public by suggesting Parliament can outlaw same-sex marriage without invoking the Constitution's notwithstanding clause.
"You must be completely honest with Canadians about the unconstitutionality of your proposal -- which will only guarantee that same-sex marriage ends up back before the courts, as opposed to being resolved by Parliament," says the bluntly worded letter, which the 134 academics intend to send to Mr. Harper today.
He has stated on several occasions that it is unnecessary to use the notwithstanding clause to eliminate same-sex marriage.
Mr. Harper has said he would instead try to amend the government's proposed bill. Failing that, he has signalled that his party would table a private member's bill aimed at achieving the same goal.
"We have a long history of introducing legislation contrary to lower-court decisions," Mr. Harper said yesterday in Victoria.
However, the 134 law professors "strenuously" disagreed with the legality of his plan.
They said that "it leads us to suspect that you are playing politics with the Supreme Court and the Charter."
"The truth is, there is only one way to accomplish your goal: invoke the notwithstanding clause."
The academics believe that, at best, an amendment such as the one Mr. Harper envisions would be instantly challenged in the courts -- and inevitably struck down as a violation of Charter-equality guarantees.
"Will there be a court challenge if we were to introduce a bill that said we affirm the traditional definition of marriage?" Conservative deputy leader Peter MacKay asked yesterday. "As sure as night follows day there will be a challenge.
"And I suggest to you that this [Liberal]bill will also be challenged as sure as night follows day," he said.
"We can't be beholden to the courts and decide not to introduce bills, or simply hold back by virtue [of the fact]that the courts might take a different view."
Still, the remarkable show of consensus with legal academia puts Mr. Harper in a political box by reducing the legitimacy of a plan that could potentially force a federal election.
Those who signed the open letter are drawn from a varied ideological base and from every law faculty in the country.
The list also includes four law deans -- Ron Daniels of the University of Toronto; Daniel Proulx, of the University of Sherbrooke; Patricia Hughes of the University of Calgary ; and Pierre Lemieux of Laval University.
"I think it is really quite unprecedented for us to speak out collectively to this degree," said U of T professor of law Sujit Choudhry, who helped draft and circulate the letter.
"We decided to intervene because the debate is proceeding on a basis of assumptions that our Constitution doesn't permit," Prof. Choudhry said in an interview. "We felt that we ought to inform the public about the correct legal framework."
The simmering same-sex issue erupted anew last week when Prime Minister Paul Martin threatened to call an election if Mr. Harper tried to move a motion to invoke the notwithstanding clause to prevent the legalization of same-sex marriage.
Mr. Harper has suggested in the past that since the Supreme Court declined to answer a reference question last December probing the constitutionality of the proposed legislation, it remains an open question.
He has also pointed out that courts in seven provinces and one territory that struck down the traditional definition of marriage were dealing with judge-made common law.
However, Prof. Choudhry said unconstitutional measures cannot be justified any more easily if they are legislated than if they are in common law.
In addition, Prof. Choudhry said, the marriage definition struck down by the Quebec Court of Appeal was actually rooted in federal legislation, since Quebec is not part of the common-law tradition and relies on legislation for many of its civil code provisions.
If Mr. Harper needs evidence that a federal law prohibition on same-sex marriage would prove just as unconstitutional as the common-law definition, the Quebec ruling supplied it, according to Prof. Choudhry.
In Victoria, Mr. Harper argued yesterday that it is time that actual legislation allowed the courts to cease dealing with the same-sex marriage issue "in a legislative vacuum. . . ."
"Until the Supreme Court rules, I think it's on a completely different plane."
However, the 134 law professors maintain that his tactical approach amounts to "shifting political accountability" from opponents of same-sex marriage to the Supreme Court.
While logic would dictate Parliament cannot pass a law that has already been found unconstitutional, Prof. Choudhry said this is not necessarily so.
He cited an instance several years ago.
That was when the federal government essentially redrafted a law that had earlier been struck down by the Supreme Court in the case of Regina v O'Connor.
The law restricted access for accused people to counselling records of sexual-assault complainants.
Prof. Choudhry said that while nothing prevents Parliament from enacting an obviously unconstitutional definition of marriage, it would be doomed to fail and it also would harm the political process.
"At some point, the process would wear down the gears of the Constitution," he said.
Invoking the notwithstanding clause is likely to have a similar effect, Prof. Choudhry said, since it must be renewed every five years by succeeding governments.
"Each process of re-enacting would be a public episode," he said. "This is all the more reason why Mr. Harper should be candid now."
A key clause
Backdrop: The 1982 Charter of Rights and Freedoms requires the federal and provincial governments to respect certain rights and freedoms that are guaranteed to everyone in Canada or, in cases such as democratic rights, every citizen of Canada. The guarantee is "subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
"Notwithstanding" clause: Section 33 of the Charter enables Parliament or a provincial legislature to specifically exempt any of its laws from three parts of the Charter: those covering fundamental freedoms, legal rights and equality rights. The exemption automatically expires after five years, but may be renewed.
Section 33 is known colloquially as the "notwithstanding" clause, from its stipulation that an exempted piece of legislation "shall operate notwithstanding a provision" in the Charter.
Usage: Governments have invoked the clause just twice in response to court decisions in the past 20 years. (It has also been used pre-emptively, as part of legal statutes not yet subject to court challenge, another 15 times.) Quebec used it in the late 1980s to override a court decision on its law barring languages other than French on commercial signs.