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Marc's arguments are based on the Charter of Rights, codes of conduct set out in the Education Act, and a common law fiduciary duty owed by educators to students.
Their [Marc Hall's school board] religious view of what constitutes discrimination simply does not correspond with the legal view of what constitutes discrimination.
People identify with his mother's love and her demand for equal treatment for her son.
The School Board is trying to expand their power, place themselves beyond the reach of the Charter, and effectively rewrite the Constitution.
He acknowledged that the Board may hold sincere religious views against same-sex dating, just as Bob Jones University in the U.S. held sincere religious views against interracial dating, but it still lost its charitable status because its sincere religious views were offensive to public values.
The Board's legal authority does not come from heaven above, but from Queen's Park. It is funded by tax dollars and subject to regulation by the province.
"Arguably, the real problem the board has with Marc is that he is is not ashamed to be gay. The objection is not to Marc's attending with [his boyfriend] or dancing with him at the prom, but that Marc may have impure thoughts or plan to sin in the future. If impure thoughts or future propensity to sin were grounds for disqualification from attending the prom, I doubt that there would be anyone in attendance," Mr. Elliott told the court.
Catholic
schools are about indoctrination - plain and simple ... There may be vigorous
debates within the Church on many subjects, but the existence of debate does not
mean that there are a range of acceptable positions - at the end of the day, Catholics
are expected to know and abide by Catholic teachings, as enunciated by the bishops.
He's
a bad example. From a Roman Catholic perspective, he sets a bad example to others.
We cannot approve that. He wants us to approve it.
He
chose to attend a Catholic school, which carries with it an expectation of moral
conformity. Instead, he wants to force the Catholic community to adapt to him.
If he doesn't like the values of the Church, he can go.
The
Trustees are elected to preserve the values of the religious community they serve,
and if members of the religious community feel they are not doing so, the proper
recourse is to elect trustees who have the faith of the community.
It is highly questionable whether the publicly-funded Catholic schools of the province, mandated to provide an education to those in their care, can say to their lesbian and gay students: "either accept discrimination at our hands or get out."
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Catholic School Board Discrimination On TrialWhitby, Ontario - Seventeen-year-old Marc Hall arrived at court today, accompanied by his parents, his boyfriend, his lawyers, and a group of supporters, to begin a two-day hearing in response to the discrimination practiced against him by his Catholic school. His school has refused to allow Marc to bring his boyfriend, Jean-Paul Dumond, to his high-school prom, claiming it is the school board's religious right to discriminate. It's an old argument used to justify racial discrimination in the past. At what point must society protect an individual from being harmed or abused by group's claiming religious freedom from society's normal protections?
The Catholic Church will argue that the British North American Act of 1867 allows them to behave outside the boundaries of what is acceptable for any other institution. "The rights to curriculm, teachers, and funding is what 1867 was all about," said Elliott in a briefing to the Coalition on April 30, 2002. "Catholic schools are still public and the province has the right to regulate," he explained, noting that Ontario school boards select their curriculm from options controlled by the province. It is a mistake to think that as long as it is labelled "Catholic" it is allowed. "A lot of things have changed in the last 150 years," Marc Hall's lawyer David Corbett told the court. It isn't sufficient to say, 'This is what we believed in 1867. We're going to continue to believe it and use it as a basis for discrimination.'" At what point do we say our public policy about discrimination is so important that we wil stop giving tax dollars to organizations that discriminate?
The Mark Hall Case - Day One of Two reprinted
courtesy of
Justice Robert MacKinnon began with some preliminaries, and then David Corbett, Marc's lawyer, opened his case. The application is for an "interlocutory injunction", seeking an immediate order that Marc be allowed to attend [the May 10, 2002] prom with the partner of his choice. Whichever side wins this initial step, the case may then go on to be heard and the broader legal principles resolved at a full trial. David
outlined the facts, emphasizing that there is no real dispute about what the parties
said or did, but that there are Marc's arguments are based on the Charter of Rights, codes of conduct set out in the Education Act, and a common law fiduciary duty owed by educators to students. David also explained the legal tests needed to win at the initial injunction stage: Although there are two sets of issues - what happens at Friday's prom, and the general principle of the authority of the school board to discriminate, only the first is relevant at the injunction stage. David then spoke about the fundamental Charter principle of "substantive equality", requiring equality not just in form but in substance, and based upon respect for the innate human dignity of each person.
Leading Supreme Court cases such as Egan, Vriend, and M v H provide a complete repudiation of the argument that it's OK to be gay, so long as you don't act gay. The Harm Caused By School Board Discrimination The
evidence establishes the harm of the Board's decision to Marc Hall, the harm to
lesbians and gays generally, and the fact that this kind of exclusion is precisely
the kind of conduct that leads to the harms of invisibility and marginalisation
of lesbian and gay students. The discrimination is compounded when it In addition to the charter right to equality, the school board is violating Marc's rights to freedom of expression and freedom of association. The board is not being asked to express anything; they're just being asked not to interfere with Marc's expression. Marc's wish to attend the prom is inherently expressive conduct, since it sends the message that he's gay, is not embarrassed, and is not willing to hide it. It counters the pervasive invisibility of lesbian and gay students. The board is saying you can be gay, just don't express it. The Education Act sets out the standards to be applied to each of the different classes of schooling in Ontario (public, catholic, private and home schools). Essentially the province says: if you take public money, you must adhere to certain standards. These standards include:
The Durham Catholic School Board
has adopted this code of conduct, and its decision [to prevent Marc from bringin
JP to his Prom] violates its own standards. Finally, the Board's decision
breaches the common law duty of educators to act in the best interests of the
children under their care. Section 93 - A Shield For Discrimination? David
then considered the scope of s.93 of the Constitution, which recognizes and provides
special protections for Catholic schools. Section 93 only protects the rights
that religious schools had at the time of confederation in 1867. The right to
run a school that is Catholic in nature is anchored in history, but has nothing
to do with who can go to a school dance, since this is not fundamental to its
identity as a Catholic school. On this point, however, the judge interjected,
saying that the Bishop had sworn a statement that the Church's teachings on homosexuality
do go to the core of its religious identity. David explained that the Church is
not a monolithic institution and that many Catholics don't agree with this position,
but the Judge expressed the view that it is a hierarchical institution and that
the Bishop's views reflect the official position of the Church. David replied
that the Bishop's views cannot wholly immunize the Board from legal scrutiny.
Could the Board expel a student who was gay or pregnant? Even Catholic students
have civil rights. Justice for Children and Youth Next the intervenor,
Justice for Children and Youth spoke. Their emphasis was on the rights of
children and young people. Their counsel opened by emphasizing the anxiety, stress,
loss of self-esteem and suicide that form part of the reality of lesbian and gay
students. Schools are often an unsafe and unsupportive environment. Young people's
rights are safeguarded by the International Convention on the Rights of the Child.
The education system has a far-reaching and all-encompassing impact on people
in its care. Attendance is mandatory until the age of 16, but children's voices
are often not heard as many decisions are made for them by adults. The
Supreme Court of Canada has held that the education system should be modeled on
principles of respect. Education includes not only the formal aspects of the curriculum,
but also informal participation in student life, such as the prom. When balancing
rights, the Court should come down on the side of protecting young people and
giving effect to the students' best interests. The Board's decision erodes students'
right to participate in school life, and legitimizes the discriminatory behaviour,
violence, and harassment lesbians and gays face at the hands of other students
throughout school system. It sends the message to other students that lesbian
and gay students are not entitled to the same respect, and that it's OK to single
them out for negative treatment. Coalition in Support of Marc Hall Doug
emphasized the clear violation of Marc's equality rights, and moved on to focus
on the special constitutional protections afforded Catholic schools in Ontario
by s.93 of the Constitution. He emphasized that even the Supreme Court has acknowledged
that these special privileges "sit uncomfortably" with the concept of equality,
and that in seeking to enlarge the boundaries of the protections afforded by s.93,
the School Board is trying to expand their power, place themselves beyond the
reach of the Charter, and effectively rewrite the Constitution.
Properly interpreted, s.93 is part of the Confederation compromise, which sought
to preserve the rights of minority religious schools as they existed at the time
of Canada's Confederation in 1867. The Board's expert, for example, emphasized
the importance to Irish Catholics of overcoming religious and cultural intolerance
in the Protestant British Ontario of 1867. However, s.93 has only protected certain
limited aspects of denominational schools, such as the right to funding through
taxes, the right to prefer Catholic teachers in employment, and the right to approval
of the religious curriculum, although even this is subject to the provincial Nowhere
in Canadian constitutional history or Court jurisprudence has there been recognized
a constitutional right to regulate dances or attendance by students at an extracurricular
event. What the Catholic schools may wish or hope to do, or feel is important
to their faith, is quite different from those very limited spheres of activity
which are exempt from Charter scrutiny by virtue of s.93. The
Board's expert insists that a Catholic teacher is "the instrument of the Almighty",
but while the Court has no jurisdiction over the Almighty, it does have jurisdiction
over Catholic schools. The Board's legal authority does not come from heaven above,
but from Queen's Park. It is funded by tax dollars and subject to regulation by
the province. When accepting tax dollars the Board must expect that it will have
some accountability to the people of Ontario.
Doug then considered how conflicting rights may properly be balanced under s.1 of the Charter. He acknowledged that the Board may hold sincere religious views against same-sex dating, just as Bob Jones University in the U.S. held sincere religious views against interracial dating, but it still lost its charitable status because its sincere religious views were offensive to public values.
Doug emphasized that nowhere in Catholic dogma is same-sex dancing prohibited, and the key document, the Catechism, calls for non-discrimination. It is absurd for the Board to characterize same-sex dancing as sexual behaviour, any more than family members dancing with one another at a public event constitutes incest. Instead, "the real problem the Board has with Marc is that he is not ashamed to be gay." The Board suggests that Marc is seeking their approval for his "lifestyle", but Marc "does not seek nor require their approval of his relationship." He just wants to go the prom with his partner. There is no minimal impairment of Marc's rights, because the Board could have still registered their lack of approval if they wanted, but did not have to forbid him from attending. They had other options short of the crushing rejection they visited upon him. Nor was the infringement of Marc' s rights proportional. In considering the balance of convenience, the Board can always have its rights vindicated at trial if an injunction is granted, but for Marc, it will be too late. If the Board is really concerned about the larger constitutional issues "rather than the desire to control or even punish this young man", then it should have no objection to him attending the prom. The Board said that Marc chose to go to a Catholic school. But he has a right to expect that his school would be true to the promise of the Catechism and that he would not be subject to unjust discrimination. Most importantly, Marc was entitled to expect that the Durham Board would obey the laws of the land.
Marc Hall is demonstrating similar courage. "He is resisting another petty tyranny, an action that is an outward and visible sign of an inward belief that he and his relationship are less worthy of respect than their heterosexual counterparts." In Rosa Parks' case, the Court ordered an injunction.
"Let this young man go to the prom with his chosen date", Doug concluded (to much blowing of noses from us softies in the crowd). "The Board can seek vindication of its legal position at trial."
Ontario English Catholic Teachers Association Day One ended with a submission by the Ontario English Catholic Teachers Association. The Association acknowledged that its Catholic teachers are responsible for the wellbeing of their lesbian and gay students. The Association supported our position that there is a serious question to be tried, explaining that even within the Catholic community there is a diversity of opinion on the care to be accorded to lesbian and gay students. Nor is there a clear definition of what it means to be "chaste" or what constitutes inappropriate sexual conduct. These matters are often best left to individual discretion. The teachers at Marc's school have differing views on these subjects, but chose to support the principal's decision. One teacher spoke with Marc three times, saying she couldn't say whether or not he should take JP to the prom - all she could do was discuss with him the Church's position and let him make up his own mind. Counsel for the Association considers that the s.93 issue is broader than the Church's power to regulate same-sex dancing. Rather, he said that it is about whether the Board has the right to regulate the conduct of students to ensure they conform with Roman Catholic teachings. The Board has the power to regulate the conduct of teachers, but it is less clear whether this power can be extended to students. Although the Bishop has expressed one view, there is a diversity of views within the Catholic community. Separate schools are not excluded wholesale from the application of the Charter - they only have the protection necessary to preserve their denominational identity. The association does not have all the answers, but supports Marc's efforts to seek clarification of his rights and feels that flexibility and creativity will be required to ensure that homosexuals can participate in the life and teachings of the Church in a practical way. Day One ended with our side feeling the issues had been as well-articulated as they could be, the sense that we had had our day in Court, and some cautious optimism. Day Two will begin with the arguments of the Durham Catholic School Board. The Mark Hall Case - Day Two of Two
reprinted courtesy of May
7, 2002 - Day Two began with the submissions of counsel for the School Board (Mr.
Lowris). He expressed concern that Marc Hall is seeking the "ultimate relief"
- if he succeeds in obtaining the right to attend the prom through an injunction,
he could then discontinue his court case, and the Board would have lost the opportunity
to obtain clarification of its s.93 The Judge intervened, saying there was no evidence that Marc intended to discontinue his main action, and that a future judge could, in any event, decline to be bound by the decision on the injunction application. Mr. Lowris then launched into his main argument, which is that Marc has no serious question to be tried, because s. 93(1) of the Constitution provides absolute protection for religious decisions by denominational schools, and places the Board's decision beyond Charter scrutiny. Although Canada is a pluralistic society, pluralism doesn't require that we reconcile irreconcilable visions of life - sometimes, we have to live and let live and respect others' right to make decisions with which we disagree. Mr. Lowris contrasted what he called the essentially individualistic human rights protections under the Charter with the collective or group rights conferred by other sections of the Constitution, which sometimes requires that individual rights be subordinated to the greater collective interest in maintaining the cultural identity of a group. He cited as examples constitutional protections conferred on aboriginals, francophones and, under s.93. on the separate religious schools.
The Board's decision is a constitutionally-protected religious decision, because being Catholic infuses all aspects of their lives, including the ability to require that students abide by the teachings of the faith. In a fairly blunt acknowledgement, Mr. Lowris affirmed: "Catholic schools are about indoctrination - plain and simple." The whole separate
school system has been confined to the Catholic community, and the province must
stay away from questions about what is Catholic. The principal did just what he
was supposed to do - responded to a student request by basing his decision on
Catholic teachings regarding sexuality, a position which has the support of the
Bishop, who has the last word on matters of faith.There
may be vigorous debates within the Church on many subjects, but the existence
of debate does not mean that there are a range of acceptable positions - at the
end of the day, Catholics are expected to know and abide by Catholic teac The Catholic teaching on sexuality is that sexual contact is only appropriate within the context of marriage, and the prom is a romantic setting which for heterosexuals is part of the process of courtship. The school expects teachers to be exemplars, but doesn't necessarily have the same expectations of students. Here, Marc Hall wants to be an exemplar. Judge: What's an "exemplar"? Lowris: Someone who sets an example. Judge: Marc Hall's position is "I just want to go to the dance with my boyfriend." How does that make him an exemplar? Lowris: He wants us to approve of his conduct. Judge: But how does that make him an exemplar? Lowris: He's a bad example. From a Roman Catholic perspective, he sets a bad example to others. We cannot approve that. He wants us to approve it. Judge: Well, if he sets a bad example because of his notorious homosexuality, is he then susceptible to suspension or expulsion as a result?
Judge: So, no romantic activity is permitted for heterosexuals - no hand-holding, hugging, kissing? Lowris: Correct. But homosexual couples could never be moral, in a romantic sense. The prom is about romance. Same-sex partners would not be prohibited from a school trip or basketball game. Judge: What if both gay people were students at the school? Could they go to the prom together? Lowris: Two gay students could go to the prom stag. What they could do there is another question. Judge: You mean, they could go to the dance, but not dance? I recognize I'm asking you to draw a line in sand which is shifting. Lowris: Schools and principals have to address all sorts of questions every day regarding student conduct. It's difficult to set hard-and-fast rules. All you can do is address each issue on a case by case basis, guided by the teachings of the Church. Taken in small pieces, virtually nothing is essential to the survival of the whole system. School prayer, crucifixes on the wall - if we dismantle the elements of Catholic education, we'll be undermining the constitutional protection afforded by s. 93(1). The central issue is - does the principal have authority to take matters of faith into account in regulating the conduct of students? We say he does. The Church' s teachings on sexuality are an essential part of Catholics' whole concept of marriage, family, relationships, all of which are at the heart of their belief system. Although the Trinity Western case says that the freedom to hold beliefs is broader than the freedom to act on them, the core issue in Trinity Western is that teachers within the religious community could not act on their beliefs outside the community. The Supreme Court said you can't go outside the community and impose your views on a stranger. Marc Hall is inside the community. If he doesn't like it, he can leave. Not all manifestations of expression are acceptable - surely the Board could discipline, for example, a student who burned the catechism, or defaced the crucifixes. The Board acknowledges that Marc Hall's conduct is expressive - he intended it to be expressive. He drove the point so that he could get approval. A teacher even offered him another way out - both he and his partner could take a girl, and end up at the prom together, but that wasn't good enough for him - he wanted that approval. Judge: Well, he wanted to come to the dance through the front door, not the back door. Lowris: Exactly! He chose to attend a Catholic school, which carries with it an expectation of moral conformity. Instead, he wants to force the Catholic community to adapt to him. If he doesn't like the values of the Church, he can go. With that, Mr. Lowris ended his submissions.
The media then asked whether, if he could do it again, he would still send Marc to a Catholic school. After another long pause, he looked at the cameras with troubled eyes, and said: "I can't answer that. I don't know. I just don't know."
The Ontario Catholic School Trustees Association The next submission was a short intervention by the Ontario Catholic School Trustees Association. The Association urged the Court to favour the Board, which had acted in good faith as a statutory decision-maker discharging its mandate. The proper purpose of an interlocutory injunction, it was argued, is to preserve the status quo, not to effectively give the plaintiff a remedy at the outset. Section 93 protects from Charter scrutiny all religious decisions exercised in good faith. The Board had an obligation to take into account the interests of other students, and of those parents who send their children to a Catholic school, expecting that the values of the faith will be upheld. These parents have a right to see their children educated within the tenets of the faith, and to expect that schools will foster a Catholic environment. Otherwise, their values will be gradually eroded, and the community will no longer see their faith reflected in the school. If the Board had allowed Marc to attend the prom with his partner, that decision too could have been challenged by a Catholic parent, but that application would also have had to fail. Denominational decisions must be resolved through denominational processes, not by the Courts. The Trustees are elected to preserve the values of the religious community they serve, and if members of the religious community feel they are not doing so, the proper recourse is to elect trustees who have the faith of the community. David Corbett's Reply After
lunch, the final submission was by David Corbett, counsel for Marc Hall, replying
to the religious arguments. In a concise and effective manner, David asserted
that pluralism doesn't mean anyone can do whatever they want - it requires respect
for diversity and the rights of others, a respect which is lacking in the Board's
decision. Nothing stops the school from teaching whatever it wants, but it is
not necessary for the Board to actively discriminate in order to communicate its
Catholic values. Mr. Lowris is inaccurate in stating the legal test as enabling the principal to make decisions that "take into account" questions of faith - s.93 immunizes a decision from Charter scrutiny only if it is "necessary" to maintain the denominational character of the school. The Judge then asked "but how do I know?", to which David replied that it's a question of evidence, that the Defendant School Board has the onus to satisfy the Court, and that at the injunction stage, there is at least a serious question to be tried. Here, a prom is a secular, not a religious, event. Judge: But don't they say a prayer at the beginning? David: That doesn't transform it into a denominational event. Judge: Well, if a prayer doesn't, what does? David: The prayer is a precursor to the event, but the event is not itself a religious ceremony. There is no "sacrament of prom". Judge:
Perhaps we're just jockeying over words - the Board's submission is that their
Catholicism infuses everything they do. The hard part is knowing where to draw
the line. David: The line asserted by the Board is almost impossible to draw. They claim that a same-sex couple could attend a school basketball game together, but not a prom. This is a meaningless distinction. In both events, they are going together, are romantically involved, and are publicly acknowledged as a same-sex couple. David then addressed the Board's assertion that those who don't like Catholic values are free to leave the school and the Church. While a Church may be able to say that, it is highly questionable whether the publicly-funded Catholic schools of the province, mandated to provide an education to those in their care, can say to their lesbian and gay students: "either accept discrimination at our hands or get out." At the conclusion of the hearing, Judge MacKinnon expressed his appreciation for the clear and focused submissions of all counsel. He said the decision was one of the most difficult he has been asked to make since his appointment to the bench nine and a half years ago. He indicated that he would reserve his judgment, and before the prom would either give his decision with reasons, or if there was insufficient time, would give his decision and provide reasons at a later date.The judge also asked what time the prom starts on Friday, suggesting that he may issue his decision very close to the event itself. As the court adjourned, and we all gathered outside for group hugs and photos, we knew that the next 72 hours will be very long ones for Marc and J.P. . Judge McKinnon will rule only on the immediate injunction question of whether Marc can attend the prom on Friday May 10. 2002; the larger constitutional issues will be decided at trial.
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Lawyers
David
then emphasized that there would be irreparable harm to Marc by denying him the
ability to go the prom - the loss was not financial and could not be compensated
with money. Further, the balance of convenience favoured issuing the injunction,
since if the injunction was denied, it would be too late - Marc would have lost
the opportunity to attend the prom, whereas if the injunction is granted, the
Board can still proceed to trial to resolve the question of the scope of their
powers. 
In the latter half of Day One, Doug Elliott (also the lawyer representing the
Metropolitan Community Church of Toronto 
government's
right to regulate the curriculum in the public interest. 
"Rosa
Parks chose to get on a bus in Alabama, knowing she might be discriminated against.
She could have left her community and moved to the North where she would not have
faced that problem." But she was part of her community in the South, and when
she was told that as a person of colour she had to sit at the back of the bus,
she refused, "because she knew that what she was being asked to do was morally
and legally wrong." 
constitutional
rights at trial. Marc would have gained one night at the prom, but the religious
constitutional rights of denominational schools would be forever diminished. 
Under
the Charter, tolerance may be a tool for seeking 'truth' or a single common vision,
but under the collective rights, tolerance requires advancing harmony by allowing
communities to retain their own visions and way of life. In the context of the
separate Catholic school system, the purpose of the protection is to provide a
basis for Catholic education in Ontario, which in turn requires that the Board
be free to make decisions based upon Catholic values. The school principal must
have the ability to take matters of faith into account in making decisions regarding
the conduct of a student. 
