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Marriage & Divorce Marriage If the notwithstanding clause is used, what happens to the gay and lesbian couples who are married - will their marriages be void? Also, will the provinces that allow same sex marriage still issue marriage liciences? (by R of Halifax, NS) Thank you for your interesting question. The following is the full text of the s. 33 of the Charter, the famous “notwithstanding clause”: (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter. (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration. (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration. (4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1). (5) Subsection (3) applies in respect of a re-enactment made under subsection (4). This section allows the federal government or the government of a province the ability to pass legislation that breaches the equality guarantees set out in the Charter. Now here’s the kicker. Because of the 1867 Constitution Act, only the federal government has the authority to pass laws that regulate marriage (ie: who can marry, how old you have to be to marry). The provincial governments can pass laws about how marriages are celebrated (ie: who can perform them, what the spouses must promise to each other during the ceremony). Note this important distinction. Now, the provinces can use the notwithstanding clause to pass legislation that breaches the Charter. The legislation the provinces pass must fall within s. 92 of the Constitution Act which sets out the areas that the provinces can make laws about. The provinces do not have the power to pass laws that regulate marriage; only the federal government does. As a result, the provinces can’t pass laws that dictate who can marry, so there is no law they could pass to invoke the notwithstanding clause to block same-sex marriage. I suppose, now that I think about it a bit more, that the most they could do was pass a law saying that “the Director of Vital Statistics shall not issue marriage licences to couples that are not of the same gender notwithstanding the federal Marriage Act,” but I think that could be attacked as an attempt to regulate marriage, which the provinces to do not have the authority to do. Interesting point, though. For the same reason, the division of powers between the provinces and the federal government, the provinces do not have the authority to pass laws that would allow for the annulment of marriages. Only the federal government has authority over divorce. As a result, and because of the provinces’ inability to regulate marriage, they could not void the marriages of same-sex couples who marry before whatever provincial legislation comes into place. Click here to go to the top of the page. Site Navigation
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