Under ss. 91 and 92 (the constitiutional division of powers between Parlt and the provinces), Parlt has jurisdiction over "Marriage and Divorce", and each province has jurisdiction over "the Solemnization of Marriage in the Province". (The framers were big on capital letters.)
"Solemnizing" a marriage just means performing it. The feds have jurisdiction over marriage itself (largely, who can marry), and the provinces have jurisdiction over how you go about getting married -- the requirements for licences, who can perform marriages, like that.
That's why all the court challenges were against provincial authorities -- because they all involved the issuance of marriage licences to same-sex couples.
Klein is a complete moron if he thinks that Alberta could refuse to allow same-sex marriages to be
solemnized in the province. As I recall, no Alberta court has so far instructed the govt there to issue the licences -- but no Alberta court could ever do so. Refusing marriage licences to same-sex couples is so obviously unconstitutional, that it would be disallowed by the Supreme Court of Canada in an instant. The Court did decline to answer this question in the marriage reference:
http://www.canlii.org/ca/cas/scc/2004/2004scc79.html4. Is the opposite-sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in section 5 of the Federal Law-Civil Law Harmonization Act, No. 1, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent?
but nobody with a brain cell has any doubt as to what it would say if the issue came before it on a challenge to a refusal to issue a marriage licence.
If the SCC had wanted to deal with the issue differently from how the provincial courts had dealt with it, it would have found a way of hearing an appeal from one of them:
http://www.samesexmarriage.ca/legal/attorney_general.htmSo begins a Memorandum of Argument from the Attorney General of Canada (AGC) in a motion to quash an appeal of the Ontario June 10 decision enabling same-sex marriage.
The appeal has been brought forward by a group of meddlers from the sacred and secular world, including the Catholic Church, Evangelicals, the Islamic Society of North America, Focus on the Family, and even some disgruntled backbench Members of Parliament have become involved.
The Court refused to hear that appeal, on the basis that the appellants didn't have standing to appeal the decision, but if it had wanted to quash the decision, one might think it would have found someone to have standing.
And the Court has already held, for instance, that excluding same-sex couples from the definition of "spouses" in provincial legislation concerning spousal support obligations is unconstitutional:
http://www.canlii.org/ca/cas/scc/1999/1999scc28.htmlCould Alberta "get out of the marriage business" altogether? This would amount to declining to exercise its constitutional jurisdiction over the solemnization of marriage. And it hardly takes a minute's thought (not that Klein is necessarily capable of that) to realize what a dog's breakfast that would create in a society in which marriage is still common ... and a province where a whole lot of people are already married. What would he do: legislate them un-married?
Maybe this will be the straw that causes him to drink himself to death.
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