Keep notwithstanding clause

Withdrawal could undermine religious freedom, says archbishop

By DEBORAH GYAPONG
Canadian Catholic News
Ottawa

Prime Minister Paul Martin's promise to get rid of federal power to use the notwithstanding clause to override court decisions involving the charter could undermine religious freedom, says the past-president of the Canadian Conference of Catholic Bishops (CCCB).

And Martin is the only political leader who in the past has promised to use the notwithstanding clause to protect religious freedom.

Archbishop Brendan O'Brien of St. John's, Nfld., said Martin had "said emphatically he would use the notwithstanding clause to protect the churches" when he was trying to "balance individual freedom and religious freedom" while his government drafted same-sex marriage legislation.

Vulnerable position

"If the federal government takes away that possibility, it certainly puts us in a more vulnerable position," O'Brien said Jan. 10.

However, O'Brien said that he didn't think the courts would force religions to marry same-sex couples, and if necessary, the churches could withdraw from the civil aspect of marriage to protect the sacrament of marriage.

The federal government could not use the override provision to deal with any court decision on the solemnization of marriage, however, because solemnization is under provincial jurisdiction.

During the English language debates in Montreal Jan. 9, Martin promised to strengthen the charter by getting rid of federal power to use the notwithstanding clause.

"Quite frankly, . . . the courts shouldn't be overturned by politicians," Martin said. "There has to be an independent body whose goal it is to protect minority rights."

Conservative Party Stephen Harper would not remove the notwithstanding clause. "I think our Constitution strikes a balance between the British system, where there's just Parliament supremacy . . . and on the other hand, the American system, where the courts are always supreme," Harper said. "Our charter provides a balance."

New Democratic Leader Jack Layton said the notwithstanding clause might be necessary to defend Canada's public health care system or abortion "rights." Last June, the Supreme Court of Canada struck down Quebec's laws against private health insurance, because long wait times violated the patients' rights to security of the person under the Quebec charter.

Earlier in the election, Martin had said that any leader who would undermine a charter right, as Harper plans to do by holding a free vote on marriage, is unfit to be prime minister.

Catholic PM?

A journalist asked O'Brien whether Martin's remark implies that any practising Catholic who took his faith seriously could not be prime minister.

O'Brien pointed out that there were a good number of Liberal MPs who voted against same sex marriage, and Martin was "being rather negative to members of his own caucus."

O'Brien said it was "ridiculous" to say that because people act according to their principles and vote accordingly that they should be disqualified from being prime minister.

Check faith at door?

Asked if Catholics should check their faith at the door, O'Brien said his position is "quite the opposite."

He also said that in all the issues facing voters, the protection of human life takes precedence.

One reason why voters are becoming cynical is because there is "a lot of pandering" to what the polls say, and not enough "standing by conviction," the archbishop said.

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