Photo by Kevin Bourassa
John Fisher of EGALE welcomes reporters to the Press Conference on Day One of the hearing



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"This case is about ten couples, real people who love each other and wish to manifest their love through marriage."
-Martha McCarthy


"The definition of spouse as an opposite sex only couple sends a message that denies status and benefits - it reinforces prejudicial attitudes. "
-Joanna Radbord


"extending marriage to us would convey that we are members of Canadian society, equal to all others."
-Joanna Radbord







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Legal - Ontario - Day One - Ontario Divisional Court

November 5, 2020

Day One - The Ontario Divisional Court

The Press Conference

Photo by: Kevin BourassaThe day began at 9:00 a.m. with a press conference introducing the two cases, here in Ontario. John Fisher, Executive Director, EGALE, introduced the two groups and their lawyers to the press. Martha McCarthy and Joanna Radbord of Epstein Cole, represent 8 couples that are seeking to have the City of Toronto issue marriage licenses.

Douglas Elliott, Patricia LeFebour and Trent Morris of Elliott & Kim [update: Firm is now McGowan Elliott & Kim] are representing the Metropolitan Community Church of Toronto (MCCT). The Church is seeking the recognition of the two legal same-sex marriages that were performed under the publication of banns on January 14, 2001.
Photo by: Kevin Bourassa
Joe spends a few moments trying to explain to Francophone Canadians, why this day is so important to all Canadians.

The press conference went well, except for an interruption in the speaking order by a representative of the Evangelical fellowship, who felt compelled to step up to the microphone to offer an opposing viewpoint. Later this individual repeatedly tried to insert herself into later interviews with couples and lawyers in order to once again present the face of discrimination.

Mr. Doug Taylor, Site Manager, Ontario Courts welcomed everyone to historic Courtroom Three and he explained some of the formalities of the court.

The Case Begins

The proceedings began at 10 a.m., as Chief Justice Heather Smith, Justice Bob Blair, and Justice Harry Laforme entered the ornate courtroom. Unlike the case in British Columbia, with the lone Justice Pitfield on the bench, our case had three learned Justices.

Martha McCarthy began by breaking the case down into two themes: love and hate.


She described love as being the essence of humanity, the family concept, something that describes the meaning of our existence.

"Consider your own wedding day," Martha said to the panel, "or the wedding day of your parents, or children, remember all the excitement, joy, anticipation …"

"This case is about ten couples, real people who love each other and wish to manifest their love through marriage."

"See these couples as they are. Walk a mile in their shoes."


Think of the continuing marginalization of gays and lesbians in our society. Our government sends a message that we are different. Imagine hearing you can't get married, a world where jokes, or the word "faggot" is still acceptable. A world where gay teenagers are 3 times as likely to commit suicide than their straight counterparts.

Martha outlined the reasons why there are no bars at common law to the marriage of same sex couples and further went on to argue that if there were any impediments in the common law, then it is incumbent upon the judges to transform common law to reflect the current state of Canadian society.

With simple clarity, Martha said that the Attorney General's entire argument could be summed up "in four words: marriage just is heterosexual". She described this as circular logic, with no logical basis, which has been used in the past, to justify other forms of discrimination.

Then Joanna Radbord presented a very complete summary of why any bar to same-sex marriage at common law must be considered discriminatory under section 15 of the Charter of Rights and Freedoms.

"We must go beyond biological differences and consider the impacts on the group to determine if we should maintain ongoing discriminatory practices."

"Does the law draw a formal distinction between the applicant couples and others?" Joanna asked. Yes. It confers a benefit on some, while denying it to others. The Attorney General claims that the distinction is between spousal and non-spousal groupings. It is a distinction based on sexual orientation. The A.G. is avoiding the very issue before the courts by saying marriage simply is for heterosexual couples. It has nothing to do with sexual orientation discrimination in their flawed logic. The failure to grant the license is differential treatment in law.

Joanna drew a compelling summation portrait of what it is like to be told that you are unworthy of marriage and her words, which powerfully evoked the sense of fear that haunts some gays and lesbians, moved several people in the courtroom close to tears. When Joanna concluded, she suggested that it was a good time to break for lunch. Many in the room, including all three judges on the bench, broke out into laughter, releasing the tension that had been built.
Photo by: Kevin Bourassa
The media listens as John Fisher introduces Laurie Aaron of EGALE (grey hair, lower right) and Marilyn Byers of PFLAG (beside him) - an organization that combats fear and hate that tries to rip families apart.

After lunch, we arrived back in the courtroom to view, close at hand, just how mean spirited and rude those who oppose equal marriage are prepared to be. Ignoring the court's sign saying our seats were reserved, and ignoring the presence of our hats, coats, notebook computer, and camcorder case, someone from "the other side" had settled herself in our seat and refused to move. Kevin loudly told the woman that she might want to get her rude and ignorant attitudes into the law, but that she would not get away with that behaviour in the courtroom. The woman still refused to move until the captain of the court informed her that the seats had been reserved for us. Grudgingly, the woman relinquished the seats. So it is clear that the opponents have disdain for us on both a political and personal level.

Joanna completed her presentation, outlining why the refusal to grant gays and lesbians the right to marry is a violation of our rights and how the government has been able to offer no evidence of why discrimination is justified, which is their responsibility in trying to save any discriminatory laws from being nullified by the courts.

"The definition of spouse as an opposite sex only couple sends a message that denies status and benefits - it reinforces prejudicial attitudes. Exclusion from marriage reinforces this stereotype and prejudice."

Joanna pointed out the Attorney General's flawed or contradictory logic. The A.G. calls marriage a fundamental social institution, but at other times, the AG denies that the exclusion of gays from marriage is of substantive value. Denial implies that our relationships are less worthy of recognition. Marriage is arguably a fundamental right.

The status of being married brings significant benefits. The court acknowledges that unmarried partners have been considered less worthy than married partners. Same sex couples forbidden to marry are marked as unworthy. There are significant benefits and protections awarded by civil recognition. The Attorney General denies, denigrates and stigmatizes any form of relationship other than heterosexual relations.

Marriage confers significant psychological benefits. Researchers find that marriage stabilizes relationships, contributes to financial well-being, attracts recognition of the relationships, improves mental health, job satisfaction, and better relations with family members.

A card from Kevin's sister Angela, her husband (also a Kevin) and Kevin's Parents expressing their support.

Joanna said that extending marriage to us would convey that we are members of Canadian society, equal to all others. It would reduce harassment and violence against gays. It would enhance the ability of gays to be accepting of their orientation, and gain a better sense of self-worth and psychological well-being.

The Attorney General is trying to force dominant religious perspectives on the rest of the community. Those who oppose our marriage reduce marriage to an institution of exclusion rather than about love and commitment. They speculate that the "sky will fall", based on prejudicial evidence. Or they claim that the purpose of the marriage is procreation, but can't explain how denying same sex couples the right to marriage will serve procreation in heterosexual relationships.

The purpose of marriage recognition is to support, recognize, encourage and affirm the commitment of two persons who wish to share their lives together.

Tomorrow Martha will outline what remedy the 8 Ontario couples want and then Douglas Elliott and Trent Morrison will begin presenting the position of MCC Toronto that the government should not discriminate against the church by imposing the one Christian group's view of marriage on our faith community.

More tomorrow.

Kevin and Joe
November 5, 2020

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