A point of reference - Supreme Court hearing on gay marriage is more about politics than law









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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.

Canada's former Justice Minister and Attorney General was honored by Equality Forum in Philadelphia for his role in bringing same-sex marriage to Canada.

"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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