Click here to buy posters!

Legal Canada - The liberation of marriage - Part II - Part III

August 17, 2004

Cotler's cock-up: have & have-not citizens
Liberation of marriage - Part III

"Mr. Harper cannot be held personally responsible for every offensive statement made by members of his Caucus, but his failure to unequivocally condemn such statements of those who would be part of a Government he seeks to form, is a failure of moral leadership."
Irwin Cotler writing about moral leadership, Liberal Party press release, June 17, 2021

Faced with a room of lawyers yesterday, Canada's Justice Minister and Attorney General, the credibility-challenged Irwin Cotler, told the Canadian Bar Association that Ottawa will no longer oppose cases initiated by gay or lesbian couples seeking access to same-sex marriage in provinces and territories that are still withholding that right.

The response was prompted by a question asked by Douglas Elliott, the lawyer in the Ontario marriage case who represented the MCCT Toronto marriages [Kevin Bourassa & Joe Varnell and Anne & Elaine Vautour].

Irwin Cotler reversed the progress of equality made by his predecessor, Martin Cauchon. As the former Justice Minister, Cauchon began calling for other provinces to open marriage to same-sex couples over one year ago! Cauchon has been recognized by human rights groups in the U.S. and in Canada for his role. Cotler will win no such praises, having tarnished his claim to being an advocate for human rights. Limply, Cotler can only manage to say that he will no longer oppose gay and lesbian couples, like he did most recently in the Yukon marriage case.

"We will not be opposing any of these," Cotler said last night. "We will allow these proceedings as they arise."

Allow these proceedings? Cotler has no choice. His impotent delays of justice and schoolboy excuses don't play in the media or in court.

"The Attorney General of Canada is not divisible by province," the Yukon court said last month, slapping down Cotler's inconsistency. "The capacity to marry is a federal issue ... it is legally unacceptable in a federal constitution area involving the Attorney General of Canada for a provision to be inapplicable in one province and in force in all others. As a result of the action or inaction of the Attorney General of Canada ... a legally unacceptable result would be perpetuated".

Cotler was simply wasting time, which seems to be his intention.

"There is no need to repeat this evidence before me or any other member of this Court in order to arrive at a conclusion already reached after tremendous application of judicious effort by three provincial courts of appeal in order to lead to a conclusion that the Attorney General of Canada properly acknowledges is correct, that is, that the common-law definition of marriage is unconstitutional."

The Yukon court went on to portray Cotler's approach as one that prevented justice: "a suspension of remedy".

Cotler's lawyer said that Canada's Attorney General acted "in a timely fashion with respect to resolving this issue on a national level for the now nine remaining jurisdictions that still fall under the old common law".

The lie was not lost on the court.

"In my view," the court said, "with respect to the Attorney General of Canada, the approach it has taken is so fundamentally inconsistent with the approach it took in the other provinces and, indeed, with the approach that it acknowledges to be correct in the Supreme Court of Canada ..."

Cotler should be leading the way in Canada, living up to his election posturing over same-sex marriage, and calling for all provinces to end marriage discrimination against gay and lesbian couples. Instead, he is left defending his own cock-up: a dysfunctional, if not deceitful and self-serving strategy of posturing and procrastination.

Other provinces are on notice by the courts, if not by our negligent Attorney General / Justice Minister. New Brunswick has already acknowledged that it must reexamine legislation, after losing a battle to maintain discrimination in the adoption case and couples in Nova Scotia have also decided they won't wait for a Justice Minister who fails to honour his job description.

Still, Cotler can only say he won't get in the way, as some Canadians are left without rights, forced to turn to the courts for remedy.

In the absence of any tangible leadership from Cotler or the Prime Minister (another vocal supporter during the election who should walk the talk now), it is still possible for a Canadian province or territory to live up to the Canadian reputation (and political posturing) of respect for human rights. But so far no province or territory has introduced marriage equality without being forced to do so by a court order.

It is not too late.