GRITS AND RED HERRINGS.

MARTIN, Paul, 1938-; COTLER, Irwin

This article focuses on the issue of same-sex marriage in Canada. Paul Martin and his government have contrived to present to the country the proposition that the matter of same-sex marriage is settled and that the Supreme Court has upheld the view that anything less than making marriage equally available to persons of the same gender is a violation of the Charter of Rights and Freedoms and therefore unconstitutional. Canadian Justice Minister Irwin Cotler knows that the Supreme Court (or any other court, for that matter) has never been asked and has never answered a question about the constitutionality of the alternative proposed by Stephen Harper: that gays be allowed the same rights, benefits and obligations as any married couple, but without the title of marriage. If Canada were to adopt a regime of civil unions for gays and lesbians, it is virtually certain that this would be found to be constitutional, and that it would be so without the need for governments to invoke the notwithstanding clause in the Charter of Rights and Freedoms. The idea would be that, from this form of union, would flow all of the rights that attach to marriage under our laws, federal or provincial. The Charter protects rights, not words, so Canada's legislators have already appropriately acted to ensure that particular civil consequences of marriage are available to people in other forms of unions, including gays. Astonishingly, in polls conducted by the Conservative party, those who oppose gay and lesbian marriage would overwhelmingly accept the concept of civil unions. It would be utterly irresponsible not to permit a mature debate on this issue as part of the next election campaign.