Ontario Court of Appeal, Marriage Hearing

Report from Laurie Arron

Day One, April 22, 2003
Day Two, April 23, 2003
Day Three, April 24, 2003
Day Four, April 25, 2003

Day One, April 22, 2003

The day began with a 9:00 am press conference on the steps of Osgoode Hall, home of the Ontario Court of Appeal. Speakers included Rev. Mark Morrison-Reed of the Unitarian Universalists, Rabbi Justin Lewis and [name removed by request] of the Canadian Coalition of Liberal Rabbis for Same-Sex Marriage, Sherri Denovo of the United Church, the Barnett-Kemper family, Rev. Brent Hawkes and Kevin and Joe of MCCT, Martha McCarthy (lawyer for the 7 “applicant couples”) and Cynthia Petersen and Laurie Arron (Egale).

Derek Rogusky, VP of Focus on the Family, also appeared and spoke to the media. Most of what he said repeated what we have heard at the Justice Committee hearings—the importance of marriage and the suggestion that Parliament and not the courts should decide this issue. Mr. Rogusky boldly stated that the B.C. Court found no Charter violation when he should have known very well that it found a s.15 equality rights violation. I asked him about this and he refused to answer. He also said there is no right to marry in international law. In fact, there is, it just doesn’t refer to same-sex couples.

Court began at 10:30 am. Before the judges came in, Captain Taylor, as he did in the court below, gave us some interesting history of the courtroom. We’re in courtroom #3, which was build in 1888, 30 years after the construction of courtroom #2, where the case was heard 17 months ago by the Ontario Divisional Court.

The case is being heard by a three-judge panel consisting of Chief Justice Roy McMurtrey, Justice James MacPherson and Justice Eileen Gillese. The day was entirely taken up with arguments by Roz Levine for the Attorney General of Canada (“AGC”). Tomorrow Gail Sinclair will address remedy for the AGC and on Friday Mike Morris will respond to the cross-appeal on MCCT’s freedom of religion claim.

Roz started by saying it has never been an issue before the court whether it is a good thing to extend marriage to same-sex couples, but that this is an issue before the Justice Committee. Instead, she said, the court should confine its analysis to Charter tests. She said the court below went beyond this and addressed public policy, and that was responsible for its “legal errors”.

The judges began peppering Roz with questions early on. Mr. Justice MacPherson asked about legislative intent, and the Chief chimed in that Parliament, given the Justice Committee hearings, seems to be re-examining what it wants.

Roz went into a lengthy argument that marriage just is heterosexual, analogizing it to citizenship versus non-citizenship, male versus female (she gave the judges the Apr 10/03 House of Lords Bellinger decision dealing with transsexual marriage), Christian versus Moslem, and democracy versus dictatorship. You see, she explained, arguing same-sex couples should be allowed to marry is like arguing that Moslems should be included as Christians under the law. Gee Roz, that makes no sense so I guess we should pack up and go home.

Justice MacPherson asked why, if we give the same rights and responsibilities to same-sex couples, should we not also give them the term marriage. Roz said that would be social policy. Oops! Love to let you marry, but that’s social policy, not a legal issue. Love you, mean it. Justice Gillese took issue with this social policy boundary.

Justice MacPherson took issue with Roz’ use of the term “universal” to describe the opposite-sex restriction. He noted Holland and Belgium, as well as historical examples of marriages of same-sex couples, and said it is clearly not universal, rather it is “predominant”.

Roz stated the three core attributes of marriage are as follows, per Professor Witte (an expert hired by the AGC): (1) possibility of children; (2) faithfulness between the couple; (3) permanency. The Chief noted that same-sex couples raise children. He joked that someone his age could not have children. Justice Gillese also questioned these features. Roz struggled, and hung her hat on the idea same-sex couples cannot have children without outside help. Justice MacPherson said many opposite-sex couples can’t procreate. He also said same-sex couples can satisfy objects 2 and 3 in any case. Roz backpedalled, railing against breaking up the attributes into their component parts. There are two sexes, she said, and the idea of bringing them together is not discriminatory. Gender is not irrelevant. There are three combinations—male/female, male/male and female/female, and each should be treated differently. She called this a “functional approach”.

Roz took us on a long historical ride, which was thankfully interrupted by Mr. Justice MacPherson, who said that in a s.15 analysis the only two questions are what is the purpose of the distinction today and what is the effect of the distinction today.

Roz was asked by MacPherson whether her three core attributes are the objectives on which we should judge the opposite-sex restriction. She said these three plus a fourth that underlies them all—the idea of heterosexual union. I guess she realized the three just wouldn’t do it, so time to call in the cavalry—the bare assertion that marriage just is heterosexual.

Mr. Justice MacPherson questioned how the objectives of marriage would be harmed if same-sex couples were permitted to marry. He said it wouldn’t take anything away from opposite-sex couples. It’s not like affirmative action, he said, where you let a few minority members into law school and therefore exclude a few white males. It’s not a zero sum game. He went on to say that allowing same-sex couples to marry doesn’t reduce the possibility of children for heterosexual couples, doesn’t reduce their faithfulness or their permanency. Roz talked of the method (i.e. procreation) but MacPherson said that’s irrelevant.

Roz argued that Mr. Justice Laforme, in the court below, did not apply a contextual analysis, viewed the distinction only from the subjective perspective of the claimants, and engaged in “definitional discrimination” by adopting a prima facie view that the distinction is discriminatory, thereby reversing the s.15 onus. Her arguments did not seem to be accepted by the court.

Roz claimed that the Walsh v. Bona decision supports the idea that you can treat different types of couples differently. The Chief interjected that to him, Walsh is based on the notion of freedom of choice. In the Walsh case the challenge was based on the differential treatment of opposite-sex common-law couples versus married couples.

Later on, Justice MacPherson quoted Walsh as being based on the notion that opposite-sex common-law couples can exercise a fundamental choice, and noted same-sex couples can’t choose to marry. Roz claimed the fundamental choice was not whether to marry, but rather which partner to choose and how to organize your life and your contractual legal obligations. MacPherson seemed unconvinced.

Roz then went into her s.15 analysis. She said it doesn’t matter whether a formal distinction exists, rather that there is substantive equality, which she seems to think there is. She used the word “context” repeatedly and stressed there is no discriminatory purpose. She said how marriage is used may be discriminatory, but not marriage itself. It all seemed like intellectual slight of hand to me.

Roz argued that C-23 provides substantive equality. MacPherson asked Roz if C-23 wasn’t mostly about money. Roz said yes. Then he asked whether marriage is about money, suggesting it is not. Got her!! He went on to note several fundamental institutions in society, like health care, education and access to jobs. He said to deny gays and lesbians access to them would be unthinkable, so how can you justify excluding them from another fundamental institution, namely marriage? Roz then used the word substantive many times. She even talked about not having the right to marry more than one person. Shades of the Justice Committee!! Oh, and marriage just is heterosexual. Just is.

Justice MacPherson said polygamous marriages don’t meet the fidelity requirement, i.e. reason # 2 above. He said marriage of same-sex couples does meet all three. She talked about consanguinity and how it doesn’t apply to same-sex couples, so if consanguinity doesn’t apply, they don’t fit marriage. She argued same-sex couples may need different health care in order to have children, noting the need for in-vitro fertilization (note—we don’t need in-vitro, lesbian wombs work just fine, and there’s two of them in a lesbian couple!).

Roz went over the Law test for whether a distinction is discriminatory. Justice Gillese asked how that helps the AGC’s case. She asked how, objectively, the exclusion of same-sex couples from a fundamental institution that is available to all Canadians but them, can be found not to be discriminatory? Roz’ answer—biological and social reality as noted by LaForest in Egan.

Re needs, capacities and circumstances, Justice MacPherson asked whether same-sex couples fit the three purposes Roz put forward. She said really the main purpose is not these three, but the underlying one of bringing together men and women. MacPherson said that’s the issue in the case, so if we accept that statement as a bare assertion then you’ve decided the case, since the case is about whether using gender as a requirement is constitutional. He said he’d prefer to look at the other three purposes. Roz argued with that. Citizenship, male, etc. She said the three are built on the heterosexual underpinning. MacPherson agreed that is what they’re based on, but now we have s.15, so that doesn’t answer the s.15 question. He also noted that Roz hadn’t yet gotten to whether the effect of the exclusion is discriminatory. (she never did!)

Chief Justice McMurtry noted the history of discrimination against homosexuals, saying that this suggests the fact the marriage model didn’t include same-sex couples may have in fact been discriminatory in purpose.

Before Roz could start her section 1 argument, Justice MacPherson asked her the following. He said her argument relies heavily on the definitional argument, and if she loses on s.15 he can’t see how she can win on s.1, and asked if she agrees. Not surprisingly, she did not.

Roz said public opinion matters, because it helps the court gauge what is reasonably justified in a free and democratic society.

Roz said this is a Charter rights case because there is government action in refusing marriage licences.

Roz concluded after explaining why it is proper to apply a section 1 test and that some deference is appropriate. Tomorrow she will do the substantive section application and Gail Sinclair will address remedy.

Til then!

Day Two, April 23, 2003

The day began at 10:30 with more interior design history from Captain Taylor. The judges then came in and the Chief announced he must attend a funeral late Friday morning, so court will run that day from 9:00–10:30 and then break until after lunch. The schedule was adjusted so that the supportive intervenors will now make their arguments Thursday afternoon, with Friday now limited to response by the AGC and by Halpern/MCCT on the cross appeal (mainly remedy).

Roz Levine for the AGC began with her section 1 analysis—whether any s.15 infringement is reasonable justifiable. She said the first test is whether the objective of marriage is pressing and substantial. She claimed Justice Laforme got her arguments wrong when he said the AGC claims procreation is the objective of marriage. She also said the objective of child-bearing has existed historically, long before claims to marry by same-sex couples.

Roz said the objective of marriage is to continue to be what it has been—a durable institution for organizing society and couples with the potential for children. While men and women will inevitably come together, they may not do so in the particular way that is best for society, which is marriage as it currently exists.

Justice MacPherson said that this is s.1, so you’ve identified a discriminatory exclusion, so you must show that there is a pressing and substantial objective to the exclusion, not to marriage as an institution. Roz said marriage is by its nature an excluding institution, it embodies that exclusion. MacPherson said you must focus on the exclusion, not marriage as an institution. Roz said you must look at the objective of both marriage and the exclusion, and in this case they are more intertwined than usual.

Roz stated that the public supports the one man / one woman definition of marriage—polls show 70% support. She said polls showing majority support for inclusion of same-sex couples asked whether same-sex couples should have “equal access to marriage”, and that Canadians may think this refers to equal rights and responsibilities, which same-sex couples were given in C-23.

Roz then read from the Justice Committee hearings re C-23, including supporting statements from LGBT groups. The Chief said of course they supported it, it was a step forward. But it doesn’t mean they support the opposite-sex restriction on marriage. Roz answered that it goes to minimal impairment (the 2^nd branch of the proportionality test) and shows that these groups felt C-23 gave more than financial benefits, but also respect and inclusion. She failed to mention that the C-23 hearings took place before s.1.1 (the interpretive clause that affirms the one man / one woman definition) was added or that Egale asked to address the Justice Committee re s.1.1 but that the Committee denied us the opportunity.

Re the third branch of the proportionality test (whether the benefit of the exclusion outweighs the harm), Roz talked of how no-fault divorce hurt marriage. She said that nobody can predict what will happen when marriage is no longer the predominant form of social organization, so this is the best evidence. Justice Gillese said if marriage is a benefit to society, and since more people will get married if we expand the group that is eligible to marry, then inclusion of same-sex couples should benefit society. Roz responded that people’s concept of marriage will change, because the procreative core of marriage will be removed. She said many people live together for a while then get married before having children. She said this is simply prognostication but it’s the best we can do. She said tampering with the symbolism of marriage can’t be a good thing and is very risky though “nobody is saying the sky will fall.” She said though this evidence is prognostication, the bar for certainty should be lowered given the huge risk involved.

Roz went on to cite Katherine Young, whose evidence suggests men will be confused and harmed if same-sex couples can marry. She said men and women need to be brought together, and marriage does that. She also cited Ned Shorter’s evidence that marriage is a good thing that is worth preserving.

Next up was David Brown, representing the intervenor the Association for Marriage and the Family in Ontario. He argued that neither the courts nor Parliament can change the definition of marriage. Justice MacPherson asked him “aren’t you alone on that point?” Everyone laughed, including the other two judges.

Mr. Brown went on to argue that non-marital relationships are under provincial jurisdiction, and pointed to the Quebec and Nova Scotia RDP schemes. He said allowing same-sex couples to marry would be an attempt to usurp provincial jurisdiction by regulating a non-marital relationship. He said the living tree doctrine includes the notion that the tree can only grow within its natural limits. He pointed to MCCT’s argument that Parliament can’t enact an RDP scheme without usurping provincial jurisdiction and said that changing the common law definition of marriage clearly engages division of powers issues and the court should “tread lightly”. Justice MacPherson asked if any constitutional scholars agree with him, and listed all the biggies. “Brown” was the reply, followed by more laughter.

Mr. Brown argued that the pith and substance of s.91(26) (the section of the Constitution that gives the feds the power over “marriage and divorce”) is the union of one man and one woman.

He talked about interpretations of the words “Indian” and “banking”, noting that the courts looked to its 1867 meaning to determine the limits of “Indian” and that “banking” has been interpreted expansively. Justice Gillese questioned why banking should be interpreted more broadly than marriage. Brown replied that banking is ambiguous but marriage is not. Justice Gillese asked how we can tell which words are ambiguous and which are not. Brown said look at history. Justice Gillese said she found this answer non-responsive to her question.

Mr. Brown then argued that whether there is a s.15 violation depends on whether the distinction is based on actual or stereotypical characteristics. He said the purpose of marriage is to regulate relationships between a man and a woman, saying that there’s nothing wrong with accepting that purpose and there is no section 15 violation since not being opposite-sex is an actual characteristic, not a stereotypical one. Justice Gillese said if we accept that then you lose, since after letting same-sex couples marry, marriage would continue to regulate opposite-sex relationships and thus continue to meet the purpose.

Next up was Peter Jervis representing the Interfaith Coalition. He said this case is about social recognition. He said marriage would be changed as a result of the inclusion of same-sex couples. It would no longer be husband and wife, instead it would have to be “committed conjugal partner” or something. This would affect everybody.

Mr. Jervis said marriage has religious meaning, and that meaning is restricted to opposite-sex couples. Allowing same-sex couples to marry would invalidate religious beliefs and make it harder for religious persons to participate in Canadian society. It would also send confusing messages to children of religious parents.

He went on to plead for a compromise to recognize same-sex couples but also respect religious minorities. He suggested a domestic partnership that is not called marriage. He said Parliament is now looking at options and the court should not short-circuit this process. Justice MacPherson said if we let same-sex couples marry then religious minorities can still hold and propagate their views and nobody would be forced to marry same-sex couples.

Mr. Jervis said that most young people talk of their “partner” not their husband or wife, and that what same-sex couples need is recognition of their partnerships, not use of the term marriage.

After lunch, Mr. Jervis argued that there are competing interests and that the s.1 proportionality analysis should take that into account.

He said that this case is not like Loving v. Virginia (the interracial marriage case). It would be if Jews could not marry or only whites could marry. Justice MacPherson said if Jews couldn’t marry that would violate s.15 based on religion, if whites only then based on race, arguably this is the same but the violation is based on sexual orientation. Jervis said it’s different because it’s a fundamental part of the institution. MacPherson said slavery was an institution. Jervis said he didn’t like slavery and it’s not the same.

Mr. Miller continued arguing for the Interfaith Coalition. He said this s.15 claim is unlike any other. He said you need to take into account the impact on other parties, since rights necessarily impact on third parties and quoted Justice Arbour in Lavoie.

Next up was the Attorney General of Ontario, represented by Lisa Sand, who said the province’s position is that the common-law rule excluding same-sex couples is outside its jurisdiction. Justice MacPherson questioned what is the point of the AGO’s submissions if they don’t take a position on the outcome. More laughs. He agreed to let her speak for the 5 minutes she had allotted to her, which she did. She explained that the province could not register the MCCT marriages as it doesn’t have the power to change the common law.

Next up was the City of Toronto, represented by Mr. Zuech. He said the city’s Clerk didn’t issue marriage licences but instead holds them in abeyance pending the result in this case.

Now for our side. First up was Martha McCarthy for the Applicant Couples. She said this case is both simple and profound, incremental and revolutionary. One day people will wonder what all the fuss was about. This case is as easy as Brown v. Board of Education (school segregation) and Loving v. Virginia (interracial marriage). They were important but easy.

The discrimination here, like that involving who is a citizen, a slave or a person, has become historic. That is why we say this is about definitional preclusion. The Charter was designed to protect against these types of historic discrimination. This case has transformative potential in terms of the place in society of gays and lesbians. This case is about love, about 9 couples who wish to manifest their love in marriage. It is about whether there is a hierarchy of love in Canada. Martha then asked the judges to look at pictures of the couples that she included in her compendium.

Martha talked about the “context” that the Attorney General didn’t mention—the context of the stigmatization of gays and lesbians. She then gave an emotionally touching account of the many ways in which this happens. She read from Harvey Fierstein’s speech after Mathew Sheppard was killed, in which he blamed all acts of anti-gay prejudice as promoting an environment in which this could happen. Justice MacPherson took issue with this reading, saying nothing the AGC said even suggested things like what happened to Mathew Sheppard. He said that the main contextual argument made by the AGC was around C-23 and its support by the gay community. Martha responded that the C-23 hearing took place before the interpretive clause affirming opposite-sex marriage was added to the bill, and Bruce Ryder, who was quoted by the AGC re C-23, went before the Justice Committee in their current hearings on marriage to say same-sex couples must be permitted to marry.

Martha talked about a history of legislative neglect. Justice MacPherson asked if she’d moved to remedy. She said she was still talking about context.

Martha then took the judges through the evidence, pointing out that her experts are leading experts who have been relied upon by the Supreme Court of Canada. She also explained that the AGC’s experts go beyond their expertise and much of their opinion is speculative.

Martha took apart the Hyde decision and explained that it was about polygamy, not the opposite-sex restriction, and that it has been rejected with respect to its ratio (the legal term for the reasoning required to come to the conclusion in the case, as opposed to tangential statements). She noted the Bellinger case (introduced yesterday by the AGC) stands for the principle that transsexuals cannot be excluded from marriage. She said that there is no common-law rule restricting marriage to same-sex couples. She also pointed out that even if there is, it is not the one man / one woman definition of marriage, but rather the rule that says marriages of same-sex couples are void.

Martha pointed out several errors made by the AGC, most notably repeated references of LaForest’s decision in Egan as representing the decision of “the Court” when in fact it is a minority opinion that was soundly rejected in M.v.H. She also noted that the AGC never referred to M.v.H., which applied Law, and which has been described as a rather straightforward application of it.

Martha talked about definitional preclusion. Justice MacPherson said some institutions are gendered, e.g. nuns. If I want to be a nun I can’t be and I couldn’t win a Charter claim because nuns just are women by definition. Martha said that definition would be protected by freedom of religion, even if it is discriminatory. She also said s.15 is about infringement of dignity. It’s about context. You can exclude women from the men’s room but not from the courtroom. Justice MacPherson said even if a man really wanted to be a nun, the fact there’s never been a male nun suggests it shouldn’t offend his dignity. Martha said the exclusion of men from being nuns wouldn’t pass the s.15 test and talked about the various steps in that test.

Justice Gillese asked why it was argued that the common-law can change without a s.15 claim. Martha answered that the common law evolves to meet the needs of society. She added that she does rely on s.15 and we do not need to meet the stricter test for changing the common law.

Joanna Radbord then proceeded to argue s.15 and s.1 She noted that the stigmatization of gays and lesbians continues even today.

Joanna stated the government makes 4 errors in its s.15 analysis. First, definitional preclusion is wrong, as explained by Martha. Second, it applies a similarly situated or relevancy test. Third, it puts forward a completely objective perspective, rather than the required subjective-objective perspective. Fourth, it misstates the contextual approach as being from the perspective of the majority, which perspective is discriminatory.

She explained that the similarly situated test was illustrated by the Bliss decision, in which the Supreme Court said that treating pregnant women differently was okay because the differential treatment was due to biology, not legislation. That principle was rejected 10 years later when it was recognized that only women get pregnant, and thus distinguishing based on pregnancy is discrimination based on gender. She explained that the AGC’s reliance on biology is based on the rejected similarly situated approach.

Joanna said that the AGC argues that the exclusion of same-sex couples from marriage was not based on any discriminatory purpose but that isn’t a complete answer. She said that as Justice MacPherson noted, a distinction can be discrimination not only based on its purpose, but also based on its effect. No discriminatory purpose is required.

The day ended, with court to resume tomorrow at 10:15.

Day Three, April 24, 2003

The day began at 10:15. Captain Taylor told us all about the coat of arms, including the order of the garter and King Richard’s travels.

Joanna Radbord began the day with s.15 and a review of relevant case law, including Egan, Miron, and Law. She quoted at length from Miron that one must take care not to define the purpose in terms that preclude the claimant group by definition. In that case, the government defined the purpose of the legislation as to benefit married couples, which excludes unmarried common-law couples by definition. To get out of this circular conundrum, the court must look at the impact of the distinction on the minority group. This approach was adopted by a unanimous Supreme Court in Law.

Law sets out a three part test:

1) Is there a distinction? Yes, opposite-sex couples can marry, same-sex couples can’t. The AGC says there is no distinction because marriage requires one man and one woman. This is definitional preclusion.

2) Is the distinction drawn based on a recognized ground? Yes, sexual orientation, since gay, lesbian and bisexual persons are the ones who want to marry someone of the same sex. Also sex, since a person can or can’t marry depending on the sex of their chosen partner. The AGC accepts this.

3) Is the distinction discriminatory? Context is important. The AGC does this wrong by talking about how marriage has always been heterosexual. Context must be viewed from the perspective of a reasonable member of the claimant group, i.e. how an LGBT person legitimately feels as a result of the exclusion. The key focus is the impact on a person’s dignity. You must stand in the shoes of the applicant couples.

Joanna then cited several examples of what it’s like to stand in our shoes. You know there are many places in the world where it’s not safe to disclose your sexual orientation. You know marriage is widely celebrated, romanticized and supported. You know a friend who killed herself because she’s a lesbian. You know that you love your spouse, want to be together forever, want to marry. You know you are not allowed to marry her. These are just a few examples. I can’t possibly illustrate the daily indignities and difficulties that we face.

The opposite-sex restriction sends a message that same-sex couples are less worthy than opposite-sex couples.

Status is important. Denial of status is denial of a benefit, as stated in Egan. This denial perpetuates our invisibility and reinforces negative stereotypes and prejudice.

Marriage is the sanction of the union by the state. Excluding same-sex couples from marriage says our unions are not worthy of the sanction of the state. Permitting same-sex couples to marry will not eliminate the stigma of being gay, but it will make a significant difference.

Joanna went through many of the personal impacts of not being able to marry—impacts on youth, on families and on how we are viewed by others in society.

Joanna noted the evidence of psychologist Rosemary Barnes, who said gays and lesbians are harmed psychologically by our exclusion from marriage and that an RDP scheme would not help. She noted this evidence is not disputed by the AGC.

Joanna then went through the 4 contextual factors set out in Law for determining whether a distinction is discriminatory. First, continuing disadvantage and vulnerability is a key indicator of whether a distinction is discriminatory.

The second factor is whether the law takes account of actual characteristics of the claimant group. The AGC rests its case on the notion that we are not opposite-sex and don’t have the unique capacity to procreate. That is not what this factor is intended to capture. It is intended to capture whether the distinction is designed to accommodate difference. It must be looked at from the claimant’s perspective. Same-sex couples want to marry for the same reasons as opposite-sex couples and have the same needs and circumstances. Our exclusion from marriage does not accommodate us at all.

The third factor is whether the rule has an ameliorative purpose. It does not.

The fourth factor is the nature of the interest. Inclusion in marriage is a fundamental interest.

Joanna then went on to section 1. She argued that if s.1 is to be applied there should be no deference because it is a common-law rule. Justice MacPherson asked if Joanna was conceding a s.1 test should be done. He said we should do one as it may help guide us in crafting a remedy.

The first step in the s.1 analysis is to determine the objective of the common-law rule and whether it is pressing and substantial. The focus must be on the purpose of the opposite-sex restriction. The purpose of marriage itself is important because it provides context, but the focus of the examination is the impugned restriction. Joanna went through earlier same-sex relationship cases that illustrated that if the purpose of the exclusion is to maintain a discriminatory inclusion, then that is definitional preclusion and is discriminatory in itself.

The purpose of marriage that the government seems to be pushing is procreation. Focusing on this is an attempt to characterize us as essentially different and outside of mainstream civilization. This is discriminatory.

To determine the real purpose of marriage we must look at what marriage actually does—the functional approach. This is what the Law Commission did and we suggest you use the purpose put forward by them. They say the purpose is “to provide an orderly framework in which couples can express their commitment to each other and voluntarily assume a range of legal rights and obligations. The law also attempts to provide for an orderly and equitable resolution of married spouses' affairs if their relationships break down.”

The next test is rational connection. There is no rational connection between the purpose of marriage and excluding same-sex couples. Where is the threat?

Justice MacPherson said an important factor is what’s done in other free and democratic societies. You’ve cited Brown and Loving. A really important factual difference is that in the 1950’s most other free and democratic countries didn’t have segregation or bans on interracial marriage. Here you have only two other countries that permit same-sex marriage. 190 other countries don’t. What do you say?

Joanna responded that gays and lesbians are oppressed in so many countries around the world and this doesn’t mean Canada shouldn’t be a leader in human rights. The role of the courts is not to be popular, but to be the protector of unpopular minorities.

Before the break, Martha asked for more time. It was agreed after the break that our side would get an extra half-hour, by starting at 1:30 after lunch tomorrow.

Martha then did a 15 minute presentation on remedy. She said that the applicant couples were refused marriage licences and the only remedy is to provide them. The court must act. Martha cited several cases to support this and to indicate that the court has a legal duty to act.

Martha said the rule to be re-fashioned is that marriages of same-sex couples are void. She said Justice Smith viewed the rule as the definition of marriage as the union of one man and one woman for life and struck that down. This leaves a legal vacuum and suggests nobody can marry, or at least casts doubt on all marriages, and represents, as stated in Schachter, “equality with a vengeance”.

Justice Gillese referred to p.75 of Martha’s factum and asked which relief she wants of those listed. Martha answered (b) and (c). She said if there is a suspension, it should just be a few months, not two years. Justice Gillese asked if Martha wanted an order in the nature of mandamus (requiring that marriage licences be issued) and Martha answered yes.

There are no alternative remedies. Justice MacPherson said that the boldest human rights case imaginable was Brown, and in that case the court struck down segregation and left the fix to government. He said it seems to him they would just change the rule from one man and one woman to two persons and leave it to government to respect that. He asked Martha if that’s okay. Martha initially expressed concern about how the government would respond, but after consideration and a little prompting from other lawyers on our side said “Yes”! A discussion ensued as to exactly how we want the court to remedy the problem, with Martha saying the important thing is to leave no wiggle room. Justice Gillese asked if it is required to go beyond saying “two persons” and positively state that same-sex couples may marry.

Martha sat down as she was concerned she was already cutting deeply into MCCT’s time.

Douglas Elliott, representing MCCT, went next. After indicating his adoption of the arguments of the Applicant Couple re sexual orientation discrimination, he introduced Trent Morris, who addressed the frozen rights argument made by Mr. Brown that argues that the Constitution does not permit marriages of same-sex couples. He stated this is not a division of powers case and you shouldn’t freeze definitions except to in certain very restrictive cases. Section 91(26) give Parliament power over matters “in relation to” marriage and divorce. One must look at the pith and substance of the legislation or common-law rule in question, not the pith and substance of the category. The common-law rule restricting marriage to opposite-sex couples is clearly in pith and substance about marriage. He went through the case law. He asked if the judges had any questions and they did not.

Doug talked about the weddings performed by MCCT and their context. He noted both couples had been through earlier holy union ceremonies but both wanted “real” marriages. There has been no objection to these marriages on any basis except that they were marriages between persons of the same sex.

Doug then put forward his s.2(a) (freedom of religion) analysis. He noted the other religious institutions that want to marry same-sex couples. He said that freedom of religion is infringed if the purpose of the rule is to adopt the religious beliefs of the dominant religion, unless it has shed its religious robes and become secular. History is important.

Justice MacPherson asked whose freedom of religion was infringed, the church or the couples, and Doug answered “both”.

The opposing parties put forward an unchanging and universal opposite-sex definition of marriage. In fact, Hyde puts forward a Christian, European worldview. The rules of marriage grew out of Christian canon law.

Doug noted that the Christian rules of marriage were first put forward by St. Augustine in 1215. A major purpose was to legitimize sex—as St. Augustine said “better to marry than to burn”. This Christian concept of marriage was monogamous and indissoluble (different than Jewish marriage) and excluded same-sex couples (different than Roman marriage). Until the 1700’s marriage was regulated solely by the Established Church of England.

In North America, native marriage permitted polygamy and same-sex unions, until Europeans imposed Christian marriage.

The current restriction to opposite-sex marriage is a vestige of 19^th century Anglican marriage.

Doug continued after lunch. He explained that the Hyde decision was clearly based on Anglican principles, since the framework of the case was to compare Mormon marriages, which were potentially polygamous, to Anglican marriage, to adopt the Anglican definition of marriage, and to declare that Mormon marriages would not be recognized.

Doug traced changes in marriage law from Confederation on. He noted that common-law couples used to be considered to be “living in sin” or “living without benefit of clergy” and used to have no legal recognition. He noted that this did not change in Ontario until 1978. He turned to the Chief and stated that the Chief would of course remember this well, since he was Attorney General of Ontario when it passed the Family Law Reform Act in that year. Doug suggested that, at the time, the Chief was assailed as the destroyer of marriage, and that the threats of negative consequences were remarkably similar to what we hear now from opponents of equal marriage. The Chief laughed as he nodded his head in agreement.

Doug said that the notion that freedom of religion is respected because MCCT can perform marriages of same-sex couples without prosecution is an impoverished view of freedom of religion. The fact of non-recognition is a form of coercion. If this were 1856 (Jewish marriages were not legally recognized until 1857) and Jews sought the legal recognition of their marriages, this court would not hesitate to see their non-recognition as violating their freedom of religion. Doug lamented the fact that every single religion represented by the Interfaith Coalition was at one time denied legal recognition of their religious marriages. Now that they have secured recognition for themselves, they seek to exclude others and prevent entrance to marriage by his clients because the religious beliefs of his clients differ from theirs.

If a person chooses something other than what he or she would otherwise choose, that is coercion or constraint. Coercion includes indirect forms of control which affect behaviour.

Justice MacPherson asked how a claim by Mormons to recognize their polygamous marriages should be treated. Doug said that you would go through the same analysis, but the conclusion might be different. You have to ask whether the rule has shed its religious robes and become secular. The consideration of the subordination of women is a secular concern. There are others. But the same process of analysis. MacPherson said Hyde rejected the Mormon view of marriage. In addition, he said that polygamy is more accepted throughout the world than is marriage of same-sex couples. Among other things, Doug said that’s because most of the world’s traditional religious dogma excludes same-sex couples.

MacPherson said the s.2(a) route seems to be a “side-door” route, whereas s.15 is a direct route to challenging the opposite-sex restriction. Doug said that the s.2(a) argument illuminates the unconstitutional roots of the restriction.

Doug then turned to s.15 and noted his agreement with the arguments of the Applicant Couples. He added that the problems faced by transsexual persons are illustrative. Courts twist themselves into knots with intrusive inquisitions into the sex of a person merely to ensure that the couple in question is not of the same sex. The uncertainty around sex may prevent transsexuals from marrying anyone.

On to section 1. Doug stated that no deference should be paid and in fact a s.1 analysis is not strictly necessary, though he is sure the court will do one. He said we must look at the purpose of the exclusion, and that the purpose of marriage only provides context. The issue is not whether marriage is a good thing, it’s whether excluding same-sex couples is a good thing.

If the purpose of the exclusion is to affirm majority religious views then it is discriminatory. He went through other discriminatory purposes as well, highlighting procreation as the purpose suggested by the AGC.

If the purpose is procreation, there is no rational connection. Otherwise we wouldn’t have recognized common-law relationships.

Whatever the outcome of this court, heterosexuality will continue to be popular. Religions will be free to denounce same-sex couples and homosexuality in general. The state cannot make such judgements. There is no clash of rights. Rather it is an attempt to preserve religious dogma.

The same doomsday prophecies were asserted by Anglicans in the 1880’s when they changed the prohibited degrees of consanguinity. None of the predicted disasters happened.

I am sure people will be offended by the marriages of same-sex couples, just as people were offended by the marriage of interracial couples, which remained unpopular long past the time of the Loving decision in 1967. Ontario has changed the rules of marriage to be more inclusive despite cries from included religions.

Doug then turned to remedy. He asked if back in 1846 it would have been acceptable to have Registered Catholic Partnerships or Registered Jewish Partnerships. Turning to Justice MacPherson’s analogy, would it be acceptable to keep us out of university but set up special “lesbian colleges” or to make gay and lesbian lawyers wear pink triangles?

There is no acceptable remedy except to let us marry. This court has a duty to fix the problem, not to defer to Parliament. Parliament does not even have the jurisdiction to enact a comprehensive RDP scheme, it only has jurisdiction over marriage. If it tried to implement an RDP, the result would be a problematic patchwork scheme. The purpose of giving Parliament jurisdiction over marriage was to avoid such a patchwork across the country.

Is including same-sex couples of such concern that Parliament would choose to get out of the marriage business rather than let us marry? The current Justice Committee hearings will likely provide more fulmination than illumination.

Doug talked about Brown v Board of Education. In that case the court actually asked the parties to come back a year later to decide what to do. Justice MacPherson said that was because nothing was done to implement de-segregation, that the first court order was a simple declaration, i.e. paragraph (a) from MCCT’s factum. Doug said it is important to MCCT that the weddings it performed on and since January 14, 2001 be recognized and registered. He said that in Brown the court clearly said segregation was wrong and didn’t go back to the school board to say you should make your black schools as nice as your white schools. We have waited long enough.

People criticized Martin Luther King as being too aggressive, that he should be patient. But King said “The time is always right to do right. Now is the time to lift our law from the quicksand of injustice to the solid rock of human dignity.”

Next up was Ed Morgan for the Coalition of Liberal Rabbis that support Same-Sex Marriage. They support same-sex marriage, perform ceremonies, and incorporate it into their faith. This is not an obscure splinter group of the Jewish faith. Mr. Jervis calls us a dissentient group. We represent the perspective of the governing body of Reform Judaism, which is the largest group of Jews in North America. We value the Orthodox Jewish community but are concerned about the view that they are the dominant Jewish faith community.

Section 2(a) requires an absence of religious coercion, including symbolic or indirect coercion. For example, labelling Sunday as the Lord’s Day was held to be coercion, as was public school prayer, even though nobody was forced to participate. The very existence sends a coercive symbolic message. We can’t fashion rules that label one set of religious practices normal and another deviant. Justice MacPherson asked what about the Mormon claim? Ed answered that you must show societal harm. The most blatant cases would include female genital mutilation or refusal to allow children blood transfusions. Polygamy is in a similar category, in that we have a social concern for degrading women. It’s like obscenity. You must show harm, else it’s allowed.

Ed said he agrees with Rabbi Novack’s statement that Jews have been persecuted and are sensitive to being marginalized. However, this should make Jews more accepting of diversity of views and more inclusive. It should not support the position taken by the Interfaith Coalition. The idea that permitting same-sex couples to marry will promote anti-semitism is just plain wrong. It will do the opposite by promoting acceptance of diversity. He said the Interfaith Coalition seeks to impose its beliefs on all Canadians and that their position suggests a theocracy and religious tyranny.

Last up was Leslie Reaume for the Canadian Human Rights Commission. She adopts the position of the Applicants, MCCT and Egale. Allowing same-sex couples to marry is part of a long and continuing process leading to equality. We see discrimination against GLBT persons manifesting itself all the time. She noted the large number of websites that promote hatred against GLBT persons.

We must take great care not to enshrine rights without allowing people to realize these rights. Equality is one of the highest aspirations of Canadians. We should not be too quick to compare ourselves to other free and democratic nations. Many of them don’t provide basic protection against employment discrimination based on sexual orientation. One need only look at the Vriend case.

Allowing same-sex couples to marry will contribute in a positive way to the goal of eradicating discrimination. It will encourage people to be more accepting and will allow gays and lesbians to participate more fully in society. It will not be a profound social change because marriage between same-sex couples is already a feature of civic life. The only issue is whether we are going to sanction those couples and give them the same protection and support as opposite-sex couples.

The current common-law rule represents a formal barrier to substantive equality. The remedy is simple—remove that barrier. Not all couples would choose to marry, but all couples must be given that choice. There is no other alternative except to give same-sex couples that choice.

Law is a summary guideline not a fixed set of criteria. It affirmed Andrews. The essential element is the impact on the dignity of the claimants. In many cases you don’t need to look at complex factors because the impact on dignity is clear and simple. This is just such a case.

We should not import s.1 into s.15, as was done by the AGC.

One of the contextual factors raised by the AGC is Parliamentary intent. However there has never been legislation to enshrine that intent and Parliament is now reviewing its position. The Canadian Human Rights act legally commits Parliament to end discrimination based on sexual orientation.

Establishing a separate registry based on any prohibited ground is discriminatory. You must ask yourselves if such a registry based on race or religion would be acceptable. It would be inconceivable.

The arguments raised by the AGC are so regressive that if they are accepted we are all at risk. As women, as people of colour, as aged people, etc. These are the arguments that have been used throughout history to disadvantage minorities. We urge this court not to resurrect such appalling doctrines.

Justice MacPherson asked if CHRC agrees with MCCT on both s.15 and s.2(a). Leslie responded yes.

This was a great day for equality!!

Court starts tomorrow at 9:00 am, with Cynthia Petersen arguing for Egale. We break for lunch at 10:30 because the Chief must attend a funeral. Back at 1:30 and finish by 3:00. Then we wait for the decision.

Day Four, April 25, 2003

The day began at 9:00 am with Captain Taylor recounting a story about the coat of arms that he had been told by Doug Elliott. He also talked of how the coat of arms reminds us that the courts are independent from the other branches of government.

Cynthia Petersen, representing Egale, began the day. She talked about remedy, telling the court she begins her argument by adopting the arguments of our side and assuming the opposite-sex restriction has been found to be unconstitutional. She talked about constitutional remedies versus non-constitutional remedies. Confusing these is a mistake made by the AGC and the court below. The appropriate remedy is that the common law rule is void and should be declared unconstitutional and of no force and effect. Full stop. No suspension.

Section 52 of the Constitution requires that any law that is inconsistent with the Constitution be declared to be of no force and effect to the extent of the inconsistency. She went through Schachter, the seminal case on remedy.

Justice MacPherson asked “is that it?” Do you not require anything further than a declaration? Cynthia responded that the declaration should be effective back to January 14, 2001 to satisfy MCCT’s concerns, and that we would be happy with further clarification, but it’s not required.

There are three steps to the Schachter analysis. These are sequential steps. You must determine the remedy before deciding whether to suspend. Suspension itself is not a proper remedy, i.e. just leaving it to Parliament. That is what Justice Smith and Justice Blair did in the court below. Doing that is an abdication of the court’s responsibility. Cynthia referred to case law on this. The courts are the trustees of constitutional rights.

Justice Gillese said the common law rule is the definition of marriage as one man and one woman, not that same-sex marriages are void. So you can’t just declare it void. Cynthia responded that it doesn’t matter how you formulate it. However that definition is the rule on polygamy and not the opposite-sex restriction. But if you wish to articulate the rule as such that’s fine. Justice Gillese said if we strike down the rule then we strike down marriage. Cynthia said the remedy we are proposing strikes down only the opposite-sex definition. Justice MacPherson referred to the one man one woman definition and expressed the same concern. Cynthia clarified again that all she is suggesting is that the opposite-sex definition be struck down. Justice Gillese asked if Justice Laforme’s formulation and remedy is acceptable and Cynthia said it is.

Section 52 commands this court to issue a declaration of invalidity. You have no option.

Schachter sets out the general principle that you must fix the problem. There is no applicable case law calling for any deference. The cases cited by the AGC say the courts are the guardians of the common law, that the common law should be updated to keep pace with society, but only on an incremental basis. But these cases don’t deal with breaches of Charter rights. They are cases where the courts are acting as the guardian of the common law, not the trustee of constitutional rights. Some get confused because these cases talk about Charter values. But that is different from an actual breach of Charter rights.

The AGC improperly focuses on government action. But there can be government action without there being a Charter breach. When government action breaches Charter rights you cannot act incrementally. Justice MacPherson asked if all we are asking for is the simple declaration Cynthia asks for, which he said is okay. He laughed as he realized what he just said. Then he went on to say that the tricky part is dealing with the other requests for remedies from the parties. Cynthia said we don’t think they’re necessary. She said the AGC argues that there should be no such declaration, i.e. that same-sex couples can marry. Justice MacPherson said such a declaration is the usual remedy.

Justice Gillese said if you have just a declaration, Parliament may see it as leaving a void and try to fill that void. Cynthia said perhaps the rest of her arguments would clarify.

Cynthia went through Parliament’s history of ignoring and delaying fixing known problems, like taking 10 years to add sexual orientation to the Canadian Human Rights Act, delaying allowing gays and lesbians to serve in the military, and not fixing legislation that sets different ages of consent for anal sex versus other sex. So we can’t just say, well, the Justice Committee is looking at it and expect something to be done.

Cynthia talked about the problem with tinkering with the definition of marriage and said to just declare the opposite-sex restriction void. Justice MacPherson asked if the “two persons” fix used by Justice Laforme does that and Cynthia said yes. Seems the judges were stuck on the idea of the common-law rule being the C-23 definition of marriage.

Cynthia then turned to whether to suspend. She said suspension allows a breach of constitutional rights to continue, and the case law says this should only happen in very limited cases, none of which are the case here. At this stage deference to the legislature is not appropriate.

She said the court below suspended because it said that Parliament has options re how to fix the problem. She submitted this is incorrect. One option put forward is RDP, also called civil unions. As already argued, this is segregation. She pointed to Justice Linden’s quote. She clarified that we are not saying RDP’s are unconstitutional, only that it doesn’t respond to the claim in this case. If the breach is denial of the freedom to marry, RDP doesn’t give them that freedom. Walsh v. Bona said that it is important to have the same range of choices and RDP doesn’t do that, because the choice of marriage is denied.

The other option is abolishing civil marriage for everybody. That goes too far. Look at Vriend, where the Supreme Court said that is not appropriate. That is akin to the southern U.S. municipal swimming pools deciding to close rather than end the whites only restriction.

Whatever remedy you choose, Parliament can still take action. You don’t end the dialogue by fixing the problem.

What about legislative offshoots, other legislation that may need to be amended? The Supreme Court said that’s not an appropriate reason for suspension. The legislature can do that in any event. None of the three reasons set out in Schachter are present. These reasons are: (1) the fix poses a danger to the public, (2) it threatens the rule of law, or (3) it deprives deserving persons of benefits without thereby benefitting those whose rights have been violated.

The other concern expressed by Justice Blair in the court below is that there are other interests that need to be considered. They cited polls. The Chief rather angrily said we’re not interested in polls. Cynthia said that’s good, because she was going to say they’re irrelevant.

Cynthia referred to the Interfaith’s submission that people call themselves “partners” today, so there’s not need to call same-sex couples married because people don’t want that. She said what people want is freedom to choose. That choice must include marriage.

We would like our remedy now, please. Underline now.

One question put to Ms. Radbord is what about the fact most of the free and democratic world doesn’t let same-sex couples marry. Someone has to go first, and we’ve missed that. There’s no doubt the U.S. has a shameful history. But we often ignore Canada’s shameful practices. We had legislated slavery pre-Confederation. Also, in the U.S. the last anti-miscegenation law was only repealed in 2000. The U.S. Supreme Court is now considering whether laws criminalizing anal sex are constitutional. And in South Africa there is now a challenge to the exclusion of same-sex couples from marriage.

I ask whether Canada wants to be among the world’s leading nations on human rights, or whether it wants to be a laggard. I hope that is a rhetorical question.

Next up was Mr. Morris for the AGC, replying on the s.2(a) issue. He said the equality rights claim based on sexual orientation is the issue in this case. Section 2(a) was not breached and Justice Laforme was correct in giving it little attention. The definition of marriage has no reference to religion and is entirely secular. It is not based on dogma. The most religious adherents can say is they agree with the opposite-sex restriction or not. The restriction pre-dates both law and Christianity.

If we accept marriages of same-sex couples based on s.2(a), that would be a rule based on the religious dogma of MCC. We would then have to allow marriages based on any religion’s conception of marriage.

Mr. Elliott says the current restriction is coercive.

The Chief Justice said he understands MCC’s arguments to be that same-sex marriage is a manifestation of their religious belief, so you are advocating a constraint on that. To what extent is it for the state to define religious practices?

Mr. Morris replied we are not seeking to define or restrain religious practices. That is different from having legal rules that coincide with religious rules. A necessary corollary of MCC’s argument is that the law must be consistent with every religion’s views on marriage, which would be untenable.

Justice Gillese said MCC says that it can’t perform marriages for same-sex couples because of legal constraints.

Mr. Morris said we don’t say they can’t perform marriages, just that it won’t be legally recognized. Justice Gillese said we’re not talking about union ceremonies, we’re talking about marriage. Mr. Morris said we’re talking about registration and licensing, not the marriage ceremony. The civil definition of marriage does not constitute a restraint on people on the basis of religion. Rather it constrains positive legal action that flows from a religious ceremony.

Justice Gillese paraphrased that religious marriages are allowed but the legal consequences that flow are what are constrained. The two should be kept separate and the latter has nothing to do with religion. Mr. Morris said that’s a correct summary of his submission.

Mr. Morris said western civilization has put different emphases on the rules of marriage, but the idea of marriage as opposite-sex has remained constant until now. The fact of Christian roots does not make marriage Christian. It has long shed its sectarian robes. And its roots go back further and include things other than Christianity.

The views of different religions inevitably conflict, so recognizing all religious marriages puts the state into a conundrum in which it cannot reconcile and respect differing views. What about marriages that violate current rules of consanguinity? What about Jewish law that allows immediate divorce rather than the civil law requirement of a one year waiting period? A Jewish woman that immediately remarries may be guilty of bigamy.

Whose religious freedom is violated? According to Mr. Elliott it’s both the church and the individuals. But if it’s individuals, that’s problematic because then each individual can decide for themselves what their beliefs are and the state would have to accommodate an overwhelming number of views.

MCC’s s.2(a) arguments are infused with words used in equality arguments. It really should be making a s.15 sexual orientation claim, not a s.2(a) claim.

Mr. Morris raised s.295 of the Criminal Code, which says solemnizing a marriage in contravention of the law of the province is criminal. This applies to people avoiding solemnization, not to marriages that are void or voidable. It doesn’t apply to basic capacity to marry. These sections are old and not used. They are based on eloping and marrying heiresses without consent. [NOTE from LA: a plain reading of this section suggests it is criminal for clergy or others to perform a marriage of a same-sex couple. Why the AGC brought this up eludes me!]

Mr. Morris addressed MCCT’s s.15 religious equality claim. He said his above points answer the substantive issues and went through a brief analysis as his time was up.

We adjourned at 10:30 and resumed at 1:30 with Gail Sinclair arguing for the AGC. She began with her argument on remedy. She said the appropriate remedy is a declaration of invalidity and suspension to July 12, 2004. [NOTE: Presumably she meant striking down the definition and leaving a void for Parliament to fill (possibly with RDP), but this was the phrase the judges were using for declaring the definition changed to two persons (so same-sex couples can marry). Rather confusing!]

She said the appropriate remedy should be as set out in Bellenger, a recent decision of the UK House of Lords. The Chief suggested there is a different legal context in UK. Gail said they have the European declaration of human rights there.

She noted that the three judges in the court below each had a different opinion on remedy. She said this is because of the profound nature of this change. It is not incremental.

Some issues—what are the residency requirements and will it apply domestically or internationally. What about prohibited degrees of consanguinity? Should you have the same degrees? Justice Gillese asked why Parliament would have difficulty with this. Gail said Parliament could address this after the fact, but it should be given the opportunity to fashion a comprehensive remedy beforehand. Justice MacPherson said the issues of same-sex marriage and consanguinity are unrelated. It would be like setting up a panel on SARS and saying, oh, we’ll give them leprosy too.

In the provincial sphere there’s the issue of filiation, since the assumption of paternity will no longer apply. It also begs the question of whether religious marriage would need to be de-coupled from civil marriage. Justice Gillese asked whether this doesn’t contradict the government’s position on s.2(a) that religious marriage and civil marriage are two different things. Gail said they are separate but linked. She stressed that issue should be dealt with comprehensively in advance. Justice Gillese asked why that’s better. Gail said it’s an issue of the appropriate role for the court and for Parliament. Parliament is charged with law reform. Justice Gillese asked if this is consistent with Schachter. Gail said the jurisprudence has eclipsed Schachter. Suspensions are now relatively routine. The Supreme Court has developed the dialogue approach.

Gail then went on a world tour. She began in the Netherlands and Belgium. In both countries it was the legislature that chose to make the change. Neither change was mandated by a court case or a constitutional doctrine. Dutch same-sex marriages have no effect except domestically and one partner must be a Dutch resident. The consanguinity laws were reduced from those for opposite-sex couples. There is no immediate filiation for the same-sex partner.

In Belgium, one partner must be resident or from a country that permits same-sex marriage. In consanguinity it mirrored the opposite-sex restrictions. No rules were made re adoption or filiation.

In the Nordic countries, there are wide variations in RDP schemes.

In New Zealand, there was a challenge known as Quilter, which found no infringement of the statute in question or the Universal Declaration of Human Rights. The issue was taken to the human rights committee of the UN in a case called Joslin, where it was decided that there was no violation of the ICCPR (Intl’l Covenant on Civil and Political Rights).

Across Canada, same-sex relationships are recognized in different ways across the provinces. The Law Commission report questions using conjugality as a basis for relationships, it supports extending marriage to same-sex couples but does not say the current definition is unconstitutional. [NOTE: It does say the exclusion of same-sex couples is discriminatory.]

Gail then went into her “institutional boundary” argument. She said that the Charter requires that there be a dialogue and that the court respect the role of Parliament. Justice MacPherson said a simple declaration would be faithful to that. Gail agreed. She said Parliament can look at things comprehensively, from all perspectives and can co-ordinate a response with the provinces. Schachter is a decade old and Parliament had already fashioned a remedy. She said suspensions have become routine and part of the remedial dialogue. She cited examples.

Gail said time has not been wasted by the legislature. A report was issued by the Department of Justice in the fall and the Justice Committee has now nearly completed its travels. Also, it is now less than 24 months.

Justice MacPherson said remedy shouldn’t be much of an issue for the eight (sic) applicant couples. It may be for the two MCC couples. Gail agreed and said MCCT continues to perform banns marriages for same-sex couples. MacPherson asked why not allow the MCCT couples to have their marriages registered. I can see why you wouldn’t want thousands of people to have marriage ceremonies, but for those who already have, what’s the big deal? MacPherson asked if the overriding principle isn’t that if you win, you win. Justice Gillese asked if it would be fine if MCC continued to perform banns marriages which would then all be registered once the suspension was over. Gail said yes.

In Bellenger, there was a declaration of incompatibility, which means the legislature must speed up. Justice Gillese asked if the legal context is the same. Gail said no.

The Respondents are asking the court to go beyond its institutional boundaries.

Gail then went into reply on s.15 and s.1. She said at times the Interfaith Coalition’s evidence was cited as the AGC’s. She takes issue with some characterizations of the evidence. It is not “uncontroverted”, rather there were procedural restrictions that prevented full testing of the evidence. They say our evidence is speculative. Theirs is just as speculative.

The AGC agrees the Supreme Court rejected the similarly situated test and adopted a substantive equality test. However, the similarly situated test is still a part of the s.15 test. She cited Gosselin, at para 61.

The analogy to Loving v. Virginia is not apt. There a valid marriage in one state was conducted and made into a nullity by means of the criminal law of another state. It was based on racial superiority. Here there is no history of an intent to discriminate. It is ironic to rely on the U.S Supreme Court, which is not progressive. She noted Bowers v. Hardwick, which upheld the criminalization of anal sex. Gail said the respondents are trying to shame the other side by invoking Loving and Brown. She said Prof. Eskridge (a gay American legal scholar) wrote an article saying the RDP analogy doesn’t apply.

In terms of remedy, the AG of Ontario is a party, so will be bound by your decision.

v Re the division of powers, we rely on the argument we made in the court below and will make this available to the court if it wishes. Justice MacPherson said he assumes the AGC does not agree with Mr. Brown’s argument. She said that’s right.

We never represented the statements from Egan as being of the entire court, but they were from the majority judgement. She noted it was a 4-4-1 split.

Justice MacPherson said the AGC always defends Parliament’s legislation, but it seems unusual to defend a common-law rule. Is there another case where the AGC has been a party right from the start of a case to defend a common-law rule. Gail couldn’t think of any, but said it’s federal common law.

The appeal is not about whether it is a good idea to open up marriage, but rather whether the opposite-sex restriction is an unjustifiable violation of constitutional rights.

Then Doug replied for MCCT. The Netherlands has the gold. Belgium will get the silver. The issue now is whether Canada will be out of the medals.

The AGC did not address whether there is a discriminatory effect to the exclusion. It used the rejected similarly situated approach, which Gosselin did not accept.

The state does not endorse MCC dogma by recognizing our marriages any more than it endorses the dogma of religions that oppose marriage for same-sex couples.

While the federal government cannot remedy inequalities at the provincial level, it can remedy the bar of same-sex couples from marriage. While marriage as it currently exists may not be based on religious dogma, the opposite-sex restriction is.

Next up was Martha in reply for the Applicant Couples. She talked of the appropriate order for remedy. First enunciate the common law rule. Secondly strike it down and declare it to be of no force and effect. Thirdly, state positively that same-sex couples have the right to marry. This differs slightly from Ms. Petersen in that we think the remedy should not simply flow from the reasons but be explicitly stated. We think the best statement of the common law rule is that marriages of same-sex couples are void. However, it doesn’t really matter, as long as you’re not going to suspend. If you suspend you risk impacting others. Mr. Elliott has passed me a note saying I agree with his submissions on remedy, so I do. Justice MacPherson jokingly asked if she also adopted MCCT’s freedom of religion arguments and she said sure, but we don’t need them.

The leading case is not Schachter, it is Swain and Dagenais.

Martha said she’s concerned about things like s.24 of Ontario’s Marriage Act which says that the person performing the marriage must say “I now pronounce you husband and wife” and the application form for a marriage licence which labels the applicants as “bride” and “bridegroom”.

Justice Blair in the court below said we shouldn’t pre-judge RDP without legislation before us. That is wrong. In remedying an unconstitutional common-law rule you must reformulate it. You have to consider whether there are other options and decide how to fix the problem. We already have half a loaf. We’re here because we want a full loaf.

It has been a long history to get here, a history of subverting court decisions. Twenty years since the Charter was passed. Based on this history it would be wrong to assume there will be compliance. Rather we should assume non-compliance by politicians.

Justice MacPherson said it is not an assumption, it is the rule of law. We already have the Clerk from the City of Toronto saying she will comply.

Martha said the government has already said it wants to enact an RDP alternative. She cited the Parliamentary motion saying it would “take all necessary steps” to defend the opposite-sex restriction.

Surely you don’t want a dialogue where we have to come back to court again and again before we have a real remedy. You should take the approach taken in Vriend, where the court simply fixed the problem. You should not adopt the notion of “if at first you don’t succeed, try, try again.”

Bill C-23 was not a magnanimous gift. It was required by M.v.H. and the affirmation of the opposite-sex restriction was an insult.

Martha quoted from Hansard some nasty, homophobic comments by an MP. She said the Justice Committee hearings have provided a forum for hatred and prejudice. We don’t need more talk.

There are no competing rights, there is no need for further study. The Law Commission has studied this. They say RDP is not an alternative. Only equal marriage will do.

There are no legal complications. We have already amended most statutes to recognize same-sex relationships.

The government has failed in its onus to show there is significant interwoven legislation. There isn’t. The AGC devotes just one paragraph in its factum to this.

Martha quoted from Vriend. “Groups that have historically been the target of discrimination cannot be expected to wait patiently for the protection of their human dignity and equal rights while governments move toward reform one step at a time. If the infringement of the rights and freedoms of these groups is permitted to persist while governments fail to pursue equality diligently, then the guarantees of the Charter will be reduced to little more than empty words.”

Justice MacPherson noted s.24 of the Marriage Act and said clearly there are some legislative amendments required. The question isn’t whether there should be a suspension, it’s how long. You say 24 months is too long. How long would you suggest? Martha replied that the MCC couples want their marriages registered. Justice MacPherson said he thought it would be terrible for a male couple to have to stand up in public and say “I take you for my bride”. Martha said then you should fix that. You should eliminate all barriers. The two I mentioned from the Marriage Act are the only two. When the government was defending M.v.H. it listed 150 statutes that had to be amended.

The core of marriage is not discrimination, it is the opposite. Michael and Mike just want to dance with their mothers at their wedding. The Applicant Couples place their lives in your hands.

The Chief thanked all the lawyers for their very able arguments presented over the past four days.

Then we all went for drinks and celebrated a hearing that left us feeling overwhelmingly optimistic. :)

Next stop Montreal!!

Laurie

Egale Canada ©2011

Canada's LGBT human rights organization: advancing equality, diversity, education, and justice.