Equal Marriage for Same Sex Couples

The entrance to Courtroom No. 3 where the history of equal marriage in Ontario is being decided.

Legal - Ontario - Day Four - Ontario Divisional Court

November 8, 2020

Day Four - The Ontario Divisional Court

Captain Taylor began our day in court by telling us about the magnificent chandelier that hangs over our heads all day. He illuminated its past, explaining that the design was originally from the "gas era" in Toronto. Of course, it is now wired for electricity, and naturally, Courtroom 3 is no longer full of gas.

Roslyn Levine, lawyer for the Government of Canada's Attorney General or AG, resumed her oral submission to Chief Justice Smith, and Justices Blair and Laforme.

Freedom of Religion

The Metropolitan Community Church of Toronto's position, as articulated by Douglas Elliott, is that the government, by supporting our exclusion from marriage, is choosing sides in the religious debate. The state coerces one group to accept the religious practice of the other; by forcing MCCT to exclude same sex couples from marriage.

Canada's position is that there is no government constraint on the ceremonies that MCCT wishes to conduct; there is no action or inaction on the part of our church that is coerced. Our church has the right to do what it wants, with no interference from the state, Smith said. The church is still allowed to hold beliefs without interference. If there is a state action that is impeding our church's beliefs, there would be a breach, but the position of Ottawa is that this is not the case.

Kevin Willcock, a deacon with the Metropolitan Community Church of Toronto and his mother Marilyn Byers of PFLAG York Region

"The fact that the state won't register the church's marriages is a Government inaction," Levine told the court, "not a constraint against the church."

Failure to register our marriages cannot be interpreted as interference, according to the AG. The definition of marriage, it was argued, is not one that comes from a Christian understanding, but rather, one that flows from a more secular view that was subsequently adopted by the churches, she said with a straight face. To describe MCCT's right to freedom of religion as being violated by the prohibition against same sex marriage is as a "mischaracterization".

"The fact that it [definition of marriage] may or may not coincide with some religious groups, and not others, does not render marriage suspect."

Freedom of Expression

"Again," Levine said, "the requirement is that Parliament not interfere with expression. There are exceptional circumstances where freedom of expression can require a positive action on the part of the government, but this, in my opinion, is not one of those circumstances that require a positive intervention on the part of the government."

Gail Donnelly (left) and Barb McDowall, one of the 8 couples petitioning for the right to be issued marriage licences have been present throughout the week in support of all the couples.

Freedom of Association

The Attorney General agrees that marriage is acknowledged as a fundamental right, but "of course, this is meant to apply to opposite sex couples." The AG claims that the act of associating and living together has not been interfered with. The purpose of the union is not protected under freedom of association; just the common pursuit of an association is protected. Gays and lesbians are free to form commitments; they are just not allowed to solemnize that commitment in one particular way.

Freedom to Marry

Levine talked about freedom to marry, within the context of once-prohibited marriage between races in the U.S. But race isn't the issue here, she told the court.

"Race is not at the core of humanity," Levine said.

And we were off again on the government's favourite theme.

"What is at the core of humanity is that which makes us human. The fact that we do become two genders - that is what makes us human. I may have belaboured that point," Levine said with some understatement, "but that is the Attorney General's position."

"There is no right to same sex marriage in international law. There is no freedom to marry in the international documents, nor in the body of international law."

Concluding her discourse on our rights, Levine said:

The magnificent law library at Osgoode Hall - a service was conducted there to day in honour of Rememberance Day.

"There has been no violation of any of the rights, under the Charter, against the applicants or the church. The law must serve humanity. That is the role of the law. If the law cannot reference the essence or core of our humanity, without engaging in a violation of charter rights, than how can the law ever serve our humanity?"

But just in case, in the event that the court finds that our rights have been breached, "those breaches are justified in a free and democratic society."

Reprise of the Pitfield Polka

The fundamental importance of marriage as a social institution, the reason to allow Canada to continue to exclude gays and lesbians, is to continue to enable society to "produce children, care for them, and nurture them."

Levine then went on to site the position of a Justice involved in the landmark Egan case, who supported her position. However, the Justice's position was in the minority.

Justice Blair asked the AG to name the four justices in the case, but Levine demurred, apparently unable to do so. Douglas Elliott, stood up to name the Justices, and elaborated that Levine was providing the court with a minority position.

"Mr. Elliott may say that it was a minority opinion in Egan, but others have agreed," she retorted.

If gays and lesbians are allowed to marry the opinion of some is that the sky will fall - potentially damaging this beautifully ornate skylight that adorns the ceiling of Osgoode Hall.

Further, she reminded the court of her stumbling the previous day.

"Yesterday, my friends kept popping up and down when they did not agree with my statements," Levine said, asking that they not continue to do so.

But a few moments later, when citing another case, she stumbled again in attempting to identify the date of a case - she wasn't even sure of the century (not surprising, given that she continues to rely on the ancient Greeks for expertise. Elliott again helped the court and provided the date for the confused Levine.

Perhaps seeking the safer ground of the familiar, the AG returned to the subject of procreation, "because of the questions that were posed" yesterday. She conceded that married couples don't have an obligation to make babies, and she agreed that some people can't procreate, and that some couples adopt or conceive a child through artificial insemination. But these circumstances are exceptions. To acknowledge that they exist does not alter the overwhelming reality that the majority of children are born through opposite sex couples.

The negative effects of denying gays and lesbians the right to marriage are far outweighed by the good effects of maintaining the institution, according to the government.

"There is no evidence, that is reliable, or that merits weight, to say that marriage, in the form of a man and a women, has caused the marginalization of same sex couples. It is true that the Church used this valuable institution for its own purposes to try to marginalize same sex couples," Levine conceded, "but that is not the circumstance today."

A statue of a Mother and Child adorns the ornate foyer of Osgoode Hall.

"There is no evidence that same sex couples would benefit in a way that would rectify the marginalization, that may objectively be there, by changing the institution."

The Sky Is Falling

"There are unknown effects of changing the institution and these effects are conceivably not beneficial," Levine warned.

"What would the effects be?" Justice Blair asked.

"As I said," repeated the AG wearily, 'we don't know what they are. I know that sounds lame."

The courtroom broke into laughter.

"Potential negative unforeseen effects are likely to occur, and that is a probability," she said, ignoring the fact that "probability" requires quantification.

But Justice Blair wasn't forgetting.

"How can you say that?

She tried to refer the court to evidence related to no fault divorce, which the government of Canada had already portrayed as a good thing, however it might not have been, the AG pondered.

Justice Blair wasn't buying it.

"How can you give any weight to these effects when you can't tell us what they are?"

"It's really by analogy," the government tried feebly. "There is no direct evidence, but it is by analysis and that is what I ask you to accept. When you change an institution, you have unforeseen effects that are not what you expected."

"Give me an example of a conceivable effect," Justice Blair persisted.

The AG tried another approach and said that the post-modern family (in the era of no fault divorce) has become less stable because it is easier to split up. The government's position was that gays and lesbians would further weaken an already unstable institution, thanks to divorce.

Counsel for the Attorney General talked about shades of grey - perhaps she was distracted by another of the magnificent skylights that grace the building.

But Justice Laforme wasn't interested in hearing about traditional, modern, and po-mo families. He wanted specifics. The AG had said there were three pillars to marriage; three goods and goals, regardless of whether your family was traditional or post modern. How did gays and lesbians affect them?

"Because if that facet of it is changed in some way, than the institution is changed in some way," was the vague reply.

"But divorce precedes the post-modern family," Chief Justice Smith said. "It was out there as a proposition long before the post-modern family."

"We want to bring the only two aspects of our humanity that continue to make humans," was the government counter. "Why would we want to loosen that part of the definition since that is pivotal?"

"You say that instability is a conceivable affect of including gays in the institution of marriage?" Justice Blair asked.

"It is conceivable," the AG said, with no sense of irony. "It changes the institution from its original purpose. If you change the institution, you clearly have different attributes."

"Instability? What else?" Justice Blair asked.

"Okay," Levine said, fishing around for an answer. "A negative impact on women, without the core recognition that it that it includes the cost of birthing and raising children … if that is taken out of the mix, then women bear the impact of that."

Levine seemed surprised at herself for pulling that one out of the hat.

"Equality can sometimes actually have a negative effect," she concluded, back in her comfort zone of platitude.

"Isn't that [the cost of raising children] taken into account in dealing with support issues?" Justice Blair asked?

"At dissolution?" Chief Justice Smith added.

"That would have to happen," the government conceded. With no more rabbits in their shoddy magic act, the federal Liberals' representative returned to another reliance; these things have to be addressed by Parliament, she said, despite the fact that Parliament has consistently shown it won't give gays and lesbians rights unless they are compelled to by the courts.

The Justices patiently continued, without success, to try to get an articulation of the negative impacts of allowing gays and lesbians to marry. But Levine could only continue with more slogans and phrases that, when strung together, made her sound quite incoherent.

Night settles on the courthouse as we prepare for the last day of the case in Ontario.

"I would suggest that there are ten shades of grey …"

It was becoming painful to watch this attorney try to defend the government's indefensible position. She decided to basically say, no other country (except the Netherlands - and that county's position on prostitution and heroin is a discredit to them, she implied, so who cares?) has enacted same sex marriage. So why should we?

Justice Laforme pointed out that maybe there have been limited challenges because not all countries have the protections and rights that Canadians do.

Seeing that her procreation argument lacked fecundity, Levine hammered on the point that the court should "let government do its job."

But what if government refuses to do its job?

"Don't interfere through the courts."

"The Word" Again

After Lunch, the AG continued in the attempt to convince the court to do nothing.

"You should not make a change," Levine said. "You have the power, because it is a judge-made rule, but you should not, because this is not incremental."

Besides, its not really marriage that is the problem, the AG suggested, attempting to divert the court into other undefined remedies.

"Marriage, the word, may not be the source of the remedy."

But Justice Blair wondered why "the word" couldn't be the remedy. Why couldn't marriage be defined to mean two persons, instead of two opposite sex persons?

"The definition is not the source of the problem," the Attorney General persisted. "Other things can be done," she said, although "there is no remedial precision."

Justice Blair tried again to get an answer to his question.

"In this particular case you have an institution that is defined by a word, a marker, and as I tried to explain, that marker is not necessarily discriminatory in itself. You may find that discrimination comes from that, but the remedy is elsewhere."

The AG concluded by saying, basically, that the government didn't have a remedy, but that the court should "give parliament a chance to address the whole package of all of the issues". This ignored the fact that government had already had that chance, through Bill C-23, and they had clearly refused to take the appropriate action at that time.

The government's arguments did differ from the Pitfield Polka in one considerable way, at one point Levine said, "There is no constitutional issue involved in redefining the definition of marriage." But she did warn that if the common law rule was changed to include gay marriage, then government statutes would be thrown into confusion (the sky is falling theme).

"If we strike down the common law rule [the prohibition against gay marriage], and government suspends the law, does that mean nobody can get married?" Justice Blair asked.

"That is the effect. I can't give you any better answer than that is the way it works."

Justice Laforme laughed at this unusual portrayal of the legislative process, and soon thereafter, the Government of Canada gave up the game, handing the podium to the Province of Ontario.

Late afternoon sees the lights go on outside Osgoode Hall - the wrought iron lamp post taking us back to the mid-19th century.

The Position of the Province of Ontario

"Not our problem" nicely sums up Ontario's position.

"The capacity to marry in not determined by the province," said Lisa Sand, representing the Attorney General of Ontario, "but rather by the federal government."

"The issue raised in this matter is beyond the jurisdiction of Ontario," Sand concluded, "and the application should be dismissed against the Attorney General of Ontario."

My Family - Not Your Family

Then David Brown stood, representing the ironically named "Association for Marriage and the Family in Ontario".

The association's primary argument is that under Canada's constitution, the definition of marriage could be changed, but not by the courts.

"Parliament, acting alone does not have the authority under our constitution to change the definition of marriage," Brown said. "This must be done by combination of parliamentary approval, and provincial approval. Our argument is one of process, and the courts can't do it, and therefore this applicant must fail."

Having said that, he put his case into terms we could all agree:

"At the end of the day, this is a battle over marriage."

It had appeared, with all his talk about process that Brown wasn't going to entangle himself in the issue of procreation, which some wags had begun to term the Johnny Cochrane defense: "If it doesn't fit, you must acquit!"

However, Brown too was fixated on "The Word".

"This is a battle over language. What does marriage mean?"

Vanessa Payne of Sack, Goldblatt Mitchell is one of the lawyers representing the Partners for Equal Marriage in Ontario.

The Word - Back Again

"I have no quarrel that a same sex couple can raise children after they are born, but that is not procreation," Brown told the court. "A same sex couple, through an act of sexual intimacy cannot conceive a child."

If a lesbian couple goes through invitro-ferilization, is that not procreation?" Justice Blair asked.

"They have conceived a child, but that is not procreation," Brown replied. "Words, in the eyes of the law have very important meanings."

"Words can change," Justice Blair said.

Wielding a dictionary, Brown challenged, "If you look in the dictionary, you won't find same sex couples included in the definition of marriage."

Chief Justice Smith, who looks like she might be a wiz at Scrabble, asked Brown to look up the meaning of reproduction in his dictionary. Brown did so, and to his chagrin, found his dictionary used gender-neutral terms in its definition. He moved on, abandoning this approach to return to his original premise.

This was a question of social science that was best left up to Parliament, and not the courts. Why? Because of those terrible, unnamed, undefined impacts we had heard so little about, so often.

"What adverse affects do we have to take into account?" Justice Blair asked.

Well, Canadians who don't wish to accept gays and lesbians and equals might be described as bigots or hateful, Brown suggested.

Brown agreed with the B.C. Pitfield decision (the meaning of marriage was frozen by the British North America Act in 1867) and he too danced the Polka, until he was tripped up by another question of definition.

"What was the definition of marriage in 1867?" Chief Justice Smith asked.

"The union of one man and one woman," Brown replied, ignoring the remaining two words of the Hyde definition his case was based on.

Justice Blair reminded him that the Hyde definition included the term "for life".

Brown continued to ignore this important distinction from today's definition of marriage.

Kevin Bourassa finds a comfortable chair to take a moment out of recording the proceedings as they unfold at Osgoode Hall.

"There is no conflict," Brown said.

"That seems kind of convenient," Justice Laforme commented. "Your argument is pretty serious to say that we need a constitutional amendment, and to parse off part of the definition, to then say that that is the definition [of marriage] is a little convenient."

"What is the source of your meaning of that definition," Chief Justice Smith asked Brown, agreeing that he seemed to be ignoring the full Hyde definition.

"If I could come to that in a minute," Brown obfuscated, unsuccessfully.

"What is your definition of marriage, if not Hyde?" Chief Justice Smith asked again.

"Common law," Brown replied.

"But common law was based on Hyde," Justice Laforme persisted, "which you are not accepting."

Brown tried to trot out the constitutional boogey man again.

"You're dealing with changing the meaning of a constitutional term", Brown said.

"Where does the meaning [of marriage] come from in the constitution, if not from the common law?" Justice Blair asked.

"It came from common law," Brown replied, but it is not fully determined by that. He said that the constitution brought new meaning to the term - specifically divorce.

"Could you get a divorce in 1867?" Justice Blair asked.

"I have no idea," Brown replied.

Chief Justice Smith tried again and asked where, if not Hyde, did Brown get this idea that marriage was defined as opposite sex, and not permanent.

Brown replied that his definition came from common-law and the constitution.

His bottom line on "The Word", was, "If the term can include everyone, the term has no meaning."

With it's ornate floors, Victorian portraits and the magnificent chandeliers, the atmosphere at Osgoode Hall this week has been like being transported back in time.

Justice Blair asked if the constitution would have to be modified to include specific reference to same sex marriage?

Brown replied that parliament couldn't change the definition of marriage, because parliament cannot change the constitution. He asked for the case to be dismissed, invoking the discredited Pitfield decision. It was beginning to look like we had a bunch of line dancers doing that familiar novelty dance, The Pitfield Polka.

Interfaith Coalition on Marriage & Family

Peter Jervis, representing the Coalition (it's nice to see we've brought Muslims and Catholics together over a cause, after a millennium of killing each other), began his routine with humour, saying he felt like a relief pitcher who has been sitting on the bench. He was ready to "throw a few strikes."

His warm-up was a respectful tip of the hat, in which he said that the applicant couples are deserving of dignity, with our relationships recognized by law, and supported by government.

"Why not extend equality one last step to marriage?" he asked.

Surprisingly, Jervis told the court "people will not be husband and wife, they will be common-law partners or conjugal partners."

"Where does that come from," Justice Blair said, taking a swing at what appeared to be a foul ball.

"What we're talking about here is creating a different institution that would constitute more than just husbands and wives," Jarivs said, assuming that two gay men would not be each other's husbands.

Clearly, "The Word" pitch wasn't delivering for Jervis either. It was time for the knuckle ball.

"This is very new stuff," Jervis claimed, "and the court is not competent to do this fundamental social engineering."

"Aren't we, as a society, doing that anyway?" Justice Laforme asked.

"We say there are other relationships, other categories …" Brown trailed off at Justice Laforme's interjection.

"Why is this fear that certain designation would tumble?" Justice Laforme asked.

"It would not be husband and wife." Brown insisted.

No one was stopping the Metropolitan Community Church from solemnization of relationships, Brown claimed, "but that is not a marriage." The reality, he claimed, was that most children are born through a one man/one woman marriage. As for other children born of other means?

"The numbers are small", Jervis said.

"Is that the criteria?" Justice Blair asked. "The numbers are small?"

"The achievements of modern science are good," Jervis said, "and if gays or lesbians wish to bring up children, in my view, this is not fundamental to the issue of marriage."

"But it is fundamental," Justice Blair replied, "Is it not? If the sole remaining aspect is procreation, and if you accept that gay and lesbian partnerships can exhibit all of the other aspects of marriage, then you are left with the procreation issue. Is that a contextual factor that we can and should take into account, in your analysis?"

Jervis replied that his associate would be making a submission about this [on Friday], and then went on to outline how there are many religious people in Canada and they would not be able to accommodate same sex marriage.

"These people are people of good conscience. What is going to happen to them? They may be marginalized."

Jervis went on to say that letting gays and lesbians marry would create a "confusing tapestry of marriage."

The relief pitcher retired, seemingly, without a single strike. Tomorrow, his associate will take his place to discuss, in more detail one assumes, the impact on the religious perspective.

More tomorrow

Kevin and Joe
November 8, 2020
Toronto

Summaries from the Court of Appeal for Ontario:
Day One - Apr. 22, 2003	Day Two - Apr. 23, 2003
Day Three - Apr. 24, 2003	Day Four - Apr. 25, 2003
The decision - June 10, 2021

Summaries from Ontario divisional court:
Day One - Nov. 5, 2001	Day Two - Nov. 6, 2001
Day Three - Nov. 7, 2001	Day Four - Nov. 8, 2001
Day Five - Nov. 9, 2001	The Decision - July 12, 2021