Revolutionary Moderation

Klein's reaction: not entirely "Hooray"



Most everyone in Alberta by now has heard that the Premier of Alberta is prepared to use the notwithstanding clause of the Charter to avoid being forced to recognize or allow gay marriage in Alberta. Most people understand what this intends. But, going by the debates I attended during my run for the legislature, very few people seem to understand the role of sec. 33, and what it can and cannot do. And as few seem to remember the debate after the Vreind decision that led to Klein's pronouncement yesterday.



Quick backgrounder on the Constitution and Charter: There are no absolute rights. Section one is very specific that rights exist "...subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society." But that wasn't enough for some Premiers, so during the negotiations prior to the 1982 ratification, Section 33 (the "Notwithstanding clause") was a very Canadian compromise to assuage fears that absolute rights of citizens would infringe on the right of a Legislature to legislate (which is, properly, what individual rights do). S. 33 allows a law to stand, notwithstanding the rights that law abridges. Note well that s. 33 can only be used to overrule what we think of as the fundamental rights, as outlined in ss. 2 and 7-15: speech, assembly, life/liberty/security, equality.... all the hits. It can't be used to overrule the right to minority language education (s. 23), for instance, or your right to get service in either official language at any federal government office (s. 20).



But as easy as it appears to apply s. 33, there are political pressures that make it extremely inconvenient. First, there's the whole "Hey, we're going to be overrunning the rights of you and/or your fellow citizens --- you down with that?" PR headache in the media. Then, if the popular winds are blowing enough in your direction to endure whatever resistance that follows, and you pass some legislation that invokes s. 33, you have to go through the whole routine again some time in your next term, because the clause has to be renewed every five years or it expires.



Klein promised this use of s. 33 shortly after the Vriend decision (I hate using pdf documents, and I hate using anything produced by Senator-Elect F.L. (Ted) Morton more (smart enough guy, but WAY out right), but that's what I have: first paragraph of page four). This is my own projection, but I don't think Ralph Klein is particularly anti-gay, or even anti-gay marriage. I think he was facing enormous political pressure in his caucus following the Vriend decision. That decision determined that protection against discrimination in Canada includes protection against discrimination due to sexual preference. I think that extension probably is one Ralph Klein doesn't object to, but he led (and still leads) a caucus that falls on social issues some distance to the right of Ralph.



So under political pressure to use s. 33 then, Klein responded, look, we can't deny homosexuals basic human rights. But if it ever gets to the point that, say, gay couples start getting married, that's when I'll put my foot down. And the strategy worked like a dream! Court decisions slowly but surely extended rights, and Alberta played along, knowing where the line had been drawn to placate the caucus homophobes. I'm convinced Klein thought there was almost no chance of a court decision that would force his hand before he was well out of politics. And, in fairness, that court decision isn't here yet... the Supreme Court of Canada has yet to be asked if it will hear an appeal, and to decide if it will if it is asked.



There is only one solution if the SCC upholds or doesn't hear an appeal: come down on the government of Alberta like a ton of bricks. They will fold on this issue under enough public pressure. There will be members of the Tory caucus hoping for a violent public reaction so the issue can be reconsidered and the decision to invoke s. 33 overturned. I'll talk more about that as the issue becomes more pressing, but the essential message should not be about the rightness of gay marriage. The message to this government should be a consistent and strong one: the Charter of Rights and Freedoms is the cornerstone of our liberal democracy, and no government should ignore the rights therein.