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Legal News Canada - The 4th question: trading rights for votes

April 5, 2004

The 4th question: trading rights for votes
Attorney General of Canada agrees with a series of 15 judges

"As for Cotler, his was the kind of acrobatic feat that was almost too painful to watch ... By adding a question to the three the justice department had originally asked, the minister has ensured that the case that had been slated to be heard in April potentially in the middle of an election campaign will now be pushed off to the fall, with no ruling until sometime in 2005." Toronto Star, Jan. 29, 2004

Last year, before the current troubled Prime Minister Paul Martin took office, the previous retiring Prime Minister Chretien, guided by Justice Minister Martin Cauchon, stopped the legal battle against same-sex marriage and promised to pass legislation to bring equal marriage throughout Canada. The legislation was sent as a reference to the Supreme Court of Canada, with the request that the court respond to three questions:

Attorney General of Canada
Supplementary factum submitted to the Supreme Court of Canada
(Mar. 30, 2004)

Read the Feb. 20 Supreme Court of Canada Order/Motion for directions

Read the Jan. 23, 2004 order/motion

Factum of the Attorney General of Canada: Reference to the Supreme Court of Canada

  1. Is the draft bill within the exclusive legislative authority of the Parliament of Canada?
  2. Is the section of the draft fill that extends capacity to marry to persons of the same sex consistent with the Canadian Charter of Rights and Freedoms?
  3. Does the freedom of religion guaranteed by the Charter protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs?

A fourth question, one that has been answered in the negative by fifteen judges in three provinces, was asked when Paul Martin took office as Prime Minister. It was a question that the Supreme Court of Canada has already answered, when it declined to hear an appeal of the Ontario marriage decision:

"Is the opposite-sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in s. 5 of the Federal Law-Civil Law Harmonization Act, No. 1, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent?"
Additional Reference Question, January 28, 2021

The fourth question was asked as a delay tactic in order to ensure that the issue of same-sex marriage was "punted" past a spring election.

"Paul Martin wants to evade the issue of gay marriage because he's afraid of the impact on his support at the ballot box," Justice critic Richard Marceau (Bloc Quebecois) said on Jan. 28. "To satisfy his thirst for power ... it shows how low they are willing to go to get elected."

Last Tuesday (March 30, 2021), the counsel for the Attorney General of Canada (AGC) signed a supplementary factum submitted to the Supreme Court of Canada (SCC). The factum presents the government's position to the SCC in relation to the fourth question. The AGC argues, from long experience on the losing side, that marriage discrimination and the Charter are incompatible."Insiders say that at a recent meeting of the Liberal caucus, David Herle, co-chair of the national campaign and an influential Martin insider, told MPs that the same-sex issue had to be "punted" before the next election."
The Globe and Mail, Jan. 29, 2004

The AGC says that the opposite-sex requirement for marriage:

  • excludes same-sex couples from the full range of benefits, protections and obligations that are available immediately to other couples who marry,
  • denies same-sex couples access to the social institution of marriage and the value and worth of their unions that is bestowed by marriage,
  • reinforces inaccurate understandings of the merits, capabilities and worth of lesbian and gay relationships within Canadian society, perpetuating their disadvantage,
  • does not serve a purpose that is sufficiently important to warrant overriding a constitutionally protected right.

"The restriction of marriage to opposite-sex couples denies gay and lesbian individuals and their families a basic aspect of full membership in Canadian Society. This affects their interests in a profound way. For all these reasons, the opposite-sex requirement for marriage has the effect of impairing the dignity of gay and lesbian individuals."

It is wonderful that the AGC is expressing this support. Again. The previous AGC of Canada will justly receive an award this month at Equality Forum, because of the previous government's commitment to live by such sentiments. It would be more interesting to hear the AGC explain why this fourth question had to be asked at the expense of a timely response to widespread violation of citizens' rights.

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