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Advocacy News - Point
of reference October
5, 2004 Point
of reference
Hearing
is more about politics than law There
has been a great deal of excitement in the media about tomorrow's reference to
the Supreme Court of Canada on the proposed legislation to define marriage in
a manner than includes same-sex couples. Some commentators
see the three-day proceedings as a landmark occassion and some are positioning
this as a sort of equality Armageddon: the final battle over same-sex marriage.While
this may make for entertaining news, getting the public to take notice of the
reference, the hyperbole has distorted the purpose of the three-day hearing. | To
be clear, the reference to the Supreme Court is not an appeal of any of the successful
judgments that couples across the country have won during the last year and a
half. In all of those cases, the federal and provincial governments have declined
to appeal the decisions to the Supreme Court of Canada.In fact, in the latest
challenges in Manitoba and Nova Scotia, the two levels have government have even
declined to challenge the cases at the provincial level. This means that regardless
of the opinion returned by the court, the law of the land will continue to permit
same-sex couples to marry and the marriages that have been taking place since
January 14, 2021 remain legal,
valid marriages. | "They've
[Canada's Liberal Party] clearly misled the Canadian public on the role they want
to play on human rights. Contrary to their advertising, they intend to drag their
feet on proposed human rights for lesbian and gay couples ... and delay taking
action no matter what the court decides."
NDP
Leader Jack Layton,
The Toronto Star, Oct., 3, 2004 |
Instead,
the Supreme Court is being asked for an opinion on a proposed bill that would
enshrine the current common-law definition of marriage in legislation (until now,
marriage has never been defined in legislation by Canada's Parliament). That common
law definition (laws maintained by courts instead of Parliament),
created by the Ontario Court of Appeal on June
10, 2003 defines marriage as 'the voluntary union for life of two persons'.
That is the definition that is the law for all of Canada. Subsequent rulings in
British Columbia, Quebec,
the Yukon, Manitoba
and Nova Scotia have all confirmed that the
Ontario Court of Appeal's decision and the courts have ordered their provincial
governments to begin complying with the law. The
federal legislation would force all of the remaining provinces and territories
to begin issuing licenses to LGBT couples. Of course, a 'rogue' government could
challenge the constitutionality of the law: the reference to the Supreme Court
was originally intended to head-off such a situation. Then justice minister Martin
Cauchon, while urging provinces to show true leadership and comply with the
common law in advance of the legislation, asked three questions of the Supreme
Court in order to ensure: - The
proposed legislation was constitutional.
- The federal government had the
jurisdiction to legislate in this matter.
- That the guarantees of religious
freedom would ensure than no church could be forced to marry a same-sex couple.
Given
the Supreme Court's decisions in cases such as Vriend v. Alberta and M
v. H., and the court's refusal to allow a group of faith-based interveners
to appeal the Ontario marriage decision, it is most unlikely that the court would
have found the legislation contravened anyone's Charter
rights. | 
"Politicians
should not run for the job if they are not prepared to face up to social challenges,
and work them through, respectfully, with citizens. And then, at the end of the
day, take a clear stand. Defend it. Move it forward. Fighting for justice is what
makes the job worthwhile ... Politicians with an eye on re-election have lots
of motivation to sidestep their duty to establish and preserve fundamental freedoms
and to just leave it to the courts. Because these issues are never easy, it is
often very divisive in the caucus of a political party. Political leadership is
important because not fulfilling your duty ultimately undermines democracy, and
contributes to cynicism about politics and politicians."
Martin
Cauchon, Canada's former Justice Minister, The
Toronto Star, Oct. 4, 2004 |
Then
a change in Liberal party leadership took place. Paul Martin and the new justice
minister, Irwin Cotler, have changed the purpose
of the reference. No longer designed to ensure everyone's rights are being respected,
they are responsible for turning the reference into a political tool designed
to protect the Liberals from constituency consequences rather than constitutional
ones. Team Martin,
planning an election for the same-time as the original reference to the court
(Spring 2004), added a question about whether
the opposite-sex definition of marriage contravened the Charter. This question
has already been answered in the affirmative by every justice who has heard a
marriage challenge - even Justice Pitfield in B.C. (the one judge in all of Canada
to conclude that discrimination was justified against gay couples). The question
was added not to clarify the issue, but rather to prolong the timelines until
after the 2004 elections. Shamefully
and discouragingly, the party of Pierre Trudeau was afraid to run on a human rights
issue. However, as the Liberal party's election fortunes began to churn towards
defeat, they hurried to differentiate themselves from
the surging Conservatives by proclaiming themselves guardians of equality. Paul
Martin expressed his support for same-sex marriage
and guaranteed he would act swiftly to deal with the issue. The
Charter resonates with Canadians and so they forgave scandal and mismanagement
and returned enough MPs to allow Mr. Martin to govern, albeit in a minority situation.
Minority governments carry with them an inherent threat of imminent election and
the liberals are back-pedaling from their strong election rhetoric. | "The
Liberal government should take steps to legalize same-sex marriage within days
of the Supreme Court rendering its opinion. Ottawa has indicated it backs same-sex
marriage and drafted legislation to that effect. Only political manoeuvring and
a lack of leadership are standing in the way of full legal recognition of gay
and lesbian relationships."
Editorial, The
Toronto Star, Oct. 5, 2004 |
Fearful
of governing, the Liberal party did not even mention the word "marriage"
in today's speech
from the throne. The government could only unconvincingly claim that it will
"defend the Charter of Rights and Freedoms". The Liberal party's record,
and a leaked cabinet document indicates that even if, as expected, the Supreme
Court affirms the constitutionality of the proposed bill, the government will
not table their legislation until a year from now. Why
the continued delay? Again, the Liberals expect an election in the next year or
so and they'd like to try, once again, to push this issue past the ballot box.
The legislation would once again have been removed from a election, and the Liberals
are likely to yet again sell themselves as the advancers of equality, while couples
continue fighting for their rights in areas of Canada that continue to discriminate
under the stewardship of Paul Martin and Irwin Cotler.
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