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The magnificent law library at Osgoode Hall will soon hold the decision to the future of marriage in Ontario.







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The reason for this application is to gain access, in order to gain wider social acceptance [for gays and lesbians"
-warning from the Interfaith Coalition





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"'...the Catholic community would not be able to relate' to marriage if gays were allowed to participate." -Interfaith Coalition




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Marilyn Byers of PFLAG York Region who helps to keep families together as part of the "homosexual agenda"







"The standard religious position becomes the enemy of the new position of equality."
-Interfaith Coalition





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The Interfaith coalition refers to "a full canvas and selection of alternatives" - that's accepable for a stained glass window, but not for a solution to a human rights issue.



"The 'essence' of being a judge is justice, wisdom and courage. Not race. Not sex."
-Douglas Elliott





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"The Government of Canada is advancing and enforcing the traditional, Christian definition of marriage." said Douglas Elliott, "This is forbidden by our Constitution."







"The definition of humanity is 'the quality or condition of being human'. Are we not human? If you prick us, do we not bleed?"
-Douglas Elliott (with an assist from Shakespeare)



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Gail Donnelly (seated) and Barb McDowall - unable to be loving and supportive parents. Did someone forget to tell Barb's kids?





"I was frankly appalled by my friend [representing Canada] urging that the Court would be forced to end marriage for all."
-Douglas Elliott





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A statue, stands sentinnel over the volumes of law.









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Charlene Wiseman, was one of the lawyers who helped prepare EGALE's arguments in favour of equal marriage.




"It may be said of marriage, as Mark Twain said of himself," Douglas quipped. 'The reports of my death have been greatly exaggerated'".
-Douglas Elliott







"It is to turn the law on its head, to say that common law rule, which is made by Judges, is supposed to be turned over to Parliament."

-Douglas Elliott




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"November 13 is a less well known anniversary. It was on that day in 1956, that the US Supreme Court ruled that it was lawful for a middle aged, black seamstress in Montgomery, Alabama, to refuse to give up her seat and move to the back of the bus"
-Douglas Elliott





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"The use of biological characteristics to draw distinctions between same-sex couples and opposite sex couples has been debunked in the case of M & H"
-Joanna Radbord





"It seems that language has the flexibility for inclusiveness and could fulfill the aspirations of the human spirit if only we would stop fettering it with our own prejudices."
-Joe Varnell







"Homosexuals and lesbians negate themselves, negate society. It is the promotion of moral corruption and the denial of human beings. it is wrong and unacceptable."
-Member of Parliament in debating Bill C-23



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Joanna Radbord, one of the legal Einstein's on the team, explains about relativity and relevance in testing for discrimination.



"There is a legislative void, there is a common rule, and you're the custodial person … and you have experience crafting common law rules and the task is upon you… You have to give a remedy."
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Legal - Ontario - Day Five - Ontario Divisional Court

November 9, 2020

Day Five - The Ontario Divisional Court

"Osgoode Hall is considered a metaphor for the justice system," Captain Taylor said, beginning our last day in court prophetically.

He went on to describe the complexities of the building (20 levels on six floors, and a total of 187,000 square feet), with its many unique architectural details, the best of these, he said, was their sculpture of "our Lady of Justice".

Captain Taylor directed our attention to the front wall of the courtroom, above where the panel of Justices sat. A woman, blindfolded, held a balanced scale in one hand, and a sword in the other. The plaster sculpture, dating from 1858, and in original condition, depicted Justice with her hand resting on the hilt of the sword, rather than holding the sword, to show that a judgement had not yet been made.

We were told that other sculptures of Justice could be found in other courtrooms in the Hall, with some differences.

"If you want to move everything across the way, to Courtroom Two, for the appeal."

The courtroom laughed, and then applauded in appreciation for the Captain's good-natured start to each day of the trial.

The Interfaith Coalition

The court was called to order, and the Interfaith Coalition on Marriage & Family, resumed its arguments, with Ian Benson taking over from where Peter Jervis left off on the previous day.

"This case is about marriage, and it is not about marriage," Benson began paradoxically.

Before he explained, he prefaced his argument with some comments about respect.

Photo by:Kevin Bourassa
Kevin Willcock, a deacon with MCC Toronto.

"Nothing our clients say should be seen as a rejection of another group."

But of course, everything they had to say seemed to be about just that.

His clients, included Catholics, Evangelical Protestants, Orthodox Jews, and Muslims, a motley crew that had found common ground in their view that homosexuals were sinners, or worse. But such a position "is not our of disrespect for them, but out of respect for principles that are larger than us all."

Benson then went on to explain his challenging opening statement, saying "this is not a simple case … a simple extension of a category to include gays and lesbians."

"The reason for this application is to gain access, in order to gain wider social acceptance," the Coalition warns.

The court was told that they "ought to defer to other forums better suited to balancing competing interests", meaning that the Coalition of spiritual groups trusted Parliament to continue to support their discrimination against homosexuals in the public realm, not only in their respective churches.

"Parliament has indicated that it wishes to maintain marriage as a heterosexual institution, due to capacity and circumstances," we were told.

Homosexuals' "agenda", the Coalition says, as if this is a threat, is "further recognition and acceptance."

Photo by: Kevin Bourassa
Victoria Paris (left), Mary Seymour MacGregor and Douglas Elliott

The Coalition, however, has its own agenda: to manifest, teach, and disseminate beliefs, "not just to hold them in the privacy of their own homes."

Apparently, if gays are accepted in society, this will make it difficult for these faith groups to hold and promote the idea that we are morally evil.

The Coalition then raised the spectre of multiple person marriages.

"Indeed, what have you got against it?" the Coalition absurdly asked the courts.

The Ménage a Trois Becomes a Group

The Coalition added to the "goods and goals" of marriage (procreation, fidelity, and sacrament) by identifying another, which is "so big, you almost don't see it": the unitive aspect of marriage that draws people together. The court had already apparently accepted that gays and lesbians participate in the first three elements, but apparently, the Coalition felt confident that we didn't participate in the new fourth attribute of marriage.

"These inter-relationships hold together the civil and religious," we were told.

Of course, our friends and family, who gathered together at our religious marriage ceremony on January 14, 2001, experienced this "unitive" effect, but the Coalition apparently doesn't "see it". In fact, Catholic policies seem designed to prevent this unitive effect, when, for example, they refuse to accommodate groups like PFLAG (Parents, Family, and Friends of Lesbians and Gays), because this group works at reconciling families with their recently "out" children. Clearly, the Coalition is interested in a limited, restricted unity; one that does not include their homosexual brothers and sisters.

In fact, "the Catholic community would not be able to relate" to marriage if gays were allowed to participate. Like the most extreme racists in days gone by, we heard that if we're allowed into the game, the Catholics will pick up their marbles and go home, rather than share the space with us.

"The Catholic Church would exclude their sense of full participation with other citizens who share the category of marriage."

Quite naturally, the exit of Catholics from the institution of marriage would have "alienating implications". It would drive them to the margins, out of full participation in society, where they would languish in the stigmatized religious view.

"The standard religious position becomes the enemy of the new position of equality," the Coalition said, explaining the obvious. They are afraid of being portrayed as "nutbars" and, as society begins to realize that the Sun does not move around the Earth, that some Church teachings are just plain wrong, spiritual leaders are feeling "under pressure, under concern, under threat."

"The surrounding litigation involving same sex communities and religion is having an effect on religious groups in society," we were told, and I don't think he meant it as a good thing.

"Muslims would be forced to remove their children," the Coalition began, in a tantalizing way, but Chief Justice Smith asked for a reference to follow this interesting statement, which caused Mr. Benson not to finish his sentence. Instead, we heard that many would find themselves "confused".

To spare faith communities this confusion, the Coalition told the court "you are not required to make a determination in this case." Send it back to Parliament, they requested, where they are confident that politicians will continue to do their bidding. If the court wishes to make a declaration in their remittance to Parliament, "leave ample scope for a full canvas and selection of alternatives," the Coalition suggested, and "ensure the question of religious exemptions are covered off."

Mr. Benseon concluded this statement, taking twice as long as he was originally allotted, due to the difficult position he said he was in; he would have rather been a respondent, instead of an intervener. One suspects, by the way he lamented not having the time he had when he presented the same case earlier this year in B.C., that he also wished he had Justice Pitfield too.

That ended the presentation of arguments by all sides, and we took a break before beginning the replies by the applicants.

Douglas Elliott, stood to represent the Metropolitan Community Church of Toronto's reply to the discriminatory statements heard this week in court.

"The respondents seek to isolate and freeze dry the opposite sex requirement of marriage as its "essence", a word used by all parties opposite," Douglas said. "But 'essence' is simply defined as 'a property of a something'. The properties of marriage have changed. Moreover, in my view the respondents do not correctly identify "essence", and they confuse "essence" with 'image'."

It had been argued that marriage was locked in a definition from 1867, "a time when this court room was new and illuminated by gaslight," Douglas pointed out, in a brilliant analogy that Captain Taylor might have been proud of, "and Canada was a colony in a vast British Empire, ruled by a distant Queen, who was also Supreme Commander of the State Church.

"We have kept the good from the past, the historic beauty of this place, and allowed the gaslight to be replaced with electric light," Douglas said, eloquently building his metaphor. "It has evolved, but it is still a court room. More importantly, if you walk around Osgoode Hall, you will see many images of distinguished Victorian Judges. All of them are white men. One could conclude from this that the essence of being a judge is being a white man. But that is not true. It surely reflects Victorian ideas about who was entitled to be a judge. It is the 19th Century image of a judge, not the essence of being a judge. The "essence" of being a judge is justice, wisdom and courage. Not race. Not sex."

Douglas countered the arguments we had heard about marriage being inflexible in its qualities.

"It was once the custom in Canada for the single white men who came out from the U.K. in the fur trade to marry, according to aboriginal custom, what were referred to as country wives, many of whom were later cast aside when a "proper" white wife became available. In this case, the plaintiff was a Cree woman who asserted she had a valid marriage to the defendant because the Cree customs recognized their marriage when it occurred, and she was therefore entitled to community property where the defendant now resided in Quebec. The defendant defended the case, among other things, on the basis that his first marriage was not a Christian marriage conducted in accordance with the common law rules, and that it was an "infidel marriage", to use the language of Hyde, because unlike Christians, the Crees permitted divorce at will, among other differences."

"The boundaries of marriage were flexible even eight days after Confederation" Douglas concluded. "Hardly 'frozen'".

The Word - The One You Didn't Hear

On day three, we wrote in length about Canada's position on "The Word". Marriage was a totem to Canada, reserved for some and restricted for others, and yet, Canada also held that there is nothing to a word, and they recited a list including, "Negro", "black", and African-American", saying that none of these changes in designations had reduced racism.

"Ms. Levine cited Professor Stainton as saying that changing language does not improve human rights," Douglas reminded the court. "Would a court today use the term 'squaw'? In Professor Stainton's list of the nomenclature that had failed to improve the lot of African Americans, he left one word conspicuously off his list - 'nigger'. Would changing that word change nothing?

"Language does have the power to convey negative images and stereotypes. Even if it cannot in itself end discrimination, or create a positive, it can help end a negative. The evidence of our couples is that the effect of their wedding being a legal marriage, as opposed to a "holy union", was pronounced for them, their families and others."

Photo by: Kevin Bourassa
Queen Victoria, whose portrait hangs in the main foyer of Osgoode Hall leant her name to an age and built a vast empire - but she didn't freeze the definition of marriage.

Church and State

Douglas, a history buff, responded authoritatively to Canada's position on sexuality (it's for procreation, according to Canada) demonstrating that distinctly non-secular origins of that line of thinking.

Chief Justice Smith asked, "Is this relevant?"

"The Government of Canada is advancing and enforcing the traditional, Christian definition of marriage," Douglas said. "This is forbidden by our Constitution."

"Despite the Vatican's consternation," Douglas said, "the invention of the Pill has meant that heterosexuals can, and I understand commonly do, enjoy sexual intercourse with the express aim of avoiding procreation. In addition, modern science means that with the help of donated sperm or the assistance of a surrogate mother, gays and lesbians can reproduce. They can make loving parents, and raise children to be happy and productive members of the human race."

Who's Witness Is This Anyway?

Douglas touched on the half-truths that have been put forward in Canada's positions (you may recall from our earlier accounts, how partial, selective readings of Hyde had been used to misrepresent the meaning of marriage - always excluding the "for life" element). Such tactics also extended to their witnesses, revealing a bias that made it appear that Canada was acting in tag-team tandem with the Catholic Church. To illustrate this, Douglas talked of one notorious expert called upon by Canada.
Photo by: Kevin Bourassa
Douglas Elliott, a master of language spoke about the power of words in affecting change in our lives.

"The bias of Suzanne Scorsone (more: Anti-gay, Against our marriage) means her evidence should be disregarded, at least to the extent it advances my friend's argument that 'religious voices should be heard'. The place for the Catholic voice is directly through my friend Mr. Jervis [the interfaith Coalition], not through stealth via Ms. Levine in an attempt to derail remedy in the guise of impartial demands for Parliamentary review. Dr. Scorsone, I might add, neglected to mention her multifarious activities opposing lesbian and gay rights in her personal and professional capacity on her CV, and also deleted any references to her advocacy role for the Archdiocese of Toronto. Her evidence is unreliable, and unhelpful."

"That's one of the big problems with this case," Justice Blair said, "on both sides. "Experts are not impartial, and we're not told of their roles, and we have to guess."

Homosexuals Are Not Human?

Douglas said he was "mightily" offended by the Canadian Liberal government's view of society, as portrayed by Ms. Levine.

"She repeatedly referred to civilization," Douglas recalled. "The implication of that language is that gays and lesbians are uncivilized or a threat to civilization. That is demeaning, and untrue. She pointed to the words "founding a family" as excluding us. We are not families in her views, apparently. Still worse, she said this case was about the essence of humanity, and then proceeded to define humanity in strictly heterosexual terms. The definition of humanity is 'the quality or condition of being human'. Are we not human? If you prick us, do we not bleed?

"This law [the common law of marriage] does many things, but I hope that it does not distinguish between humans and non-humans. That was indeed the philosophy underlying the Nuremberg laws, not anything that has any place in our legal system or in our values."

Similarly, Douglas pointed out the wilfully blind position that the Government takes regarding gay parents.

"My learned friend says marriages provide a stable environment for children, that marriages are more stable relationships and therefore better for society. We agree. Aren't more marriages better for society, and better for all children? Do our children deserve less?"

The Bart Simpson Defence: "Didn't Do It"

Disenguously, the Attorney General claims to have done nothing to offend our Charter rights and freedoms, claiming that there is no government action here, merely inaction.

"There is government action," Douglas argued. "The Ontario Government's action and its refusal to register our documents, its direction to the [Toronto] City Clerk not to issue licenses, all at the behest or with the blessing of the Federal Government. This is interference. If we are right, and only what is legally recognized is a "marriage", then they have reduced our ceremonies to the second class status of Pre-Confederation Jewish, Catholic, Muslim or Sikh unions, and that is coercion."

The Johnny Cochrane Defense: "Can't Do It"

The Canadian Government dismisses its offense by pretending that gays and lesbians don't procreate, and most importantly, according to the Attorney General of Canada, we don't employ a penis and a vagina in the process.

"Fundamentally, the golden thread throughout my friend's argument is procreation, 'the perfect fit'. My partner Mr. Morris was heard to quip, paraphrasing Johnny Cochrane, 'The parts don't fit … you must acquit.'"

The Chicken Little Defense: "The Sky Is Falling"

Levine, who admitted that her account of negative impacts arising from same sex marriage was "lame", lived up to her self-description by implying that women might somehow suffer financially, as a result of such a change.

"We have been blamed for many things over the millennia," Douglas said, "from the destruction of Sodom to the fall of Rome, but to link us to the feminization of poverty is a brand new stretch of the imagination."

If we did allow gay marriages in Canada, the Government seemed concerned about what our neighbours might think. How would a gay Canadian married couple be received abroad? We have International treaties to worry about, the Attorney General said vaguely. The Canadian government seems to be fretting over how to deal with governments hostile towards gays and lesbians.

"It would be a sad day if we decided marriage could not be permitted because one day a lesbian might be our ambassador to Afghanistan," Douglas said. "In fact, the Americans have a gay ambassador in Romania as we speak."

Equal marriage would not "disrupt anything other than religious sensibilities."

And even then, nobody is suggesting that other faiths must marry gays.

"My client is on record as supporting the freedom of religion of those conservative faiths fully. Would that they would accord the same level of respect to our freedom of religion."

Most outrageously, the Canadian government believes that marriage will cease to exist if gays and lesbians gain access.

I was frankly appalled by my friend urging that the Court would be forced to end marriage for all," Douglas said. "It was reminiscent of the City of Montgomery, Alabama, closing all of its parks, rather than accept an end to segregated parks. Of course, the Courts put an end to that ploy, too."

Douglas turned to the Canadian government's doppelganger, the religious interveners, who claim that their faith groups will suffer as a result of equality being extended to gays and lesbians.

"There is evidence filed by my friend [the Interfaith Coalition] that his clients feel stigmatized by criticism of their belief that homosexuality is a sin. There is no evidence that this problem will increase if the boundaries of marriage are extended. What they really want is state endorsement of their views, something which the present formulation [of marriage] affords them. However, they are not entitled to state endorsement of their ideas.

Photo by: Kevin Bourassa
One of the lovely stained glass wndows of the Dining Hall, represnetative of the close ties that have always existed between the architecture of 'church' and the architecture of 'state'.

"It is not the state's role to insulate their beliefs from criticism in the marketplace of ideas. As they are free to call us sinners and to attempt to persuade others they are right, we are free to say their beliefs are wrong and the product of misinterpretations of the Bible and cultural homophobia. That is the freedom of expression component of freedom of religion. I understand they do not like the word bigot. I am not thrilled about, either."

"It may be said of marriage, as Mark Twain said of himself," Douglas quipped. 'The reports of my death have been greatly exaggerated'".

Remedy - An End To Segregation

Prime Minister Chretien and Canada's Justice Minister have clearly endorsed policies that are homophobic. They have only extended equal rights to gays and lesbians when the courts have ordered them to do so. Douglas rejected the repeated calls to refer this matter back to the so-called Liberal government, saying that the Government and the religious-right are "playing for time" to consider so-called alternatives:

"There is no other way to remedy the problem," Douglas said. "With respect, Parliament just will not do it unless the Court insists on the change."

"Waiting is not without harms," Douglas said. "Every parent, from the birth of a son or daughter, dreams of attending the wedding of that son or daughter. Already, many of our parents have died without seeing that dream realized. Jim Egan and Jack Nesbitt, the plaintiffs in the Egan case, who had spent a lifetime together, fighting for gay rights, went to their graves without having the chance to marry. We have waited long enough."

Justice Blair asked, "How should we define marriage? What language should be used?"

Douglas demurred from defining marriage for the judge, saying that declaring the validity of our January 14 marriages "does not require you to redefine marriage", but simply to compel the registration of the documents submitted by the Metropolitan Community Church of Toronto.
Photo by: Kevin Bourassa
The gallery above the dining hall in Osgoode Hall.

"An order to declare the marriage valid, and second, an order to the Registrar General to recognize the marriage?" Chief Justice Smith asked.

"Yes," Douglas said.

"And marriage is?" Justice Blair asked, persisting in his pursuit of a definition from Douglas. "What language do you say the court should use if we reformulate the concept of marriage? Marriage is what?"

"The Catholic Church," Douglas began, incredibly, "in 1909, said the word marriage may be taken to mean the action, contract, formality or ceremony by which the conjugal union is formed or the union itself is an enduring condition."

It was a wonderful irony to offer a Catholic source to the court - a fine example of the deep command that the team of Elliott & Kim have on the subject.

Douglas elaborated on the definition to specify that he had no problem adding "the union of two persons". Alternatively, he suggested that the court could adopt the Hyde definition if it substituted "man and woman" for "two persons". Similarly, he also suggested that the Bill-C23 definition could be altered in the same way.

"There are a whole gamut of definitions out there," Justice Blair said.

"It depends on your Honour's view," Douglas said.

"How are we equipped to decide which of those definitions to employ?" Justice Blair asked.

Photo by: Kevin Bourassa
The antique chandelier elegantly set off by the moulding attempts to illuminate what goes on inside Osgoode Hall.

"I have every confidence in the competence of this court," Douglas replied. "I think you are well equipped to identify the offending portions of the common law rule, and reformulate a new common law rule. Not only are you well equipped; it is your duty, not Parliament's. It is to turn law on its head, to say that common law rule, which is made by Judges, is supposed to be turned over to Parliament."

The courtroom fell silent and still as Douglas made a compelling plea for the end of segregation of gays and lesbians. He concluded his Reply as eloquently as he began.

"November 11 is an important date on our calendar, when we remember those who died for freedom. November 13 is a less well known anniversary. It was on that day in 1956, that the US Supreme Court ruled that it lawful for a middle aged, black seamstress in Montgomery, Alabama, to refuse to give up her seat and move to the back of the bus."

"When Rosa Parks refused to move to the back of the bus, it was not because she thought that the seats were less comfortable back there or because she would take longer to reach her destination. It was because she knew it was wrong. She knew it was an outward and visible symbol of a traditional system of beliefs that characterized her as a second-class citizen, in fact, as a lesser human being.

"We are told that as a result of M. v. H. and Bill C-23, we are now allowed on the bus of relationship recognition and we should be content to know our place at the back of the bus. We are told that where we are asked to sit is just as good as where straight people sit, and we should acknowledge that they have always had the exclusive right to sit at the front of the bus in the section reserved for married folks. Like Rosa Parks, we cannot submit to such an injustice. Like Alabama in 1955, our Governments today will not remove this unjust restriction. Like Rosa Parks, we look to the Courts to right this wrong.

"In the wake of the white backlash that followed the brave protest of Rosa Parks and her subsequent court case, Rev. Dr. Martin Luther King Jr. said, "we must learn to meet hate with love." That is our task. The task of this Honourable Court, like that of the U.S. Supreme Court, is to do justice, and to end segregation."

The Theory Of Relativity

Joanna Radbord began her rebuttal of the Attorney General's evidence by outlining why the approach to Charter interpretation that the government had urged the court to consider was incorrect and outdated. "The Supreme Court of Canada has long declared the relevance test to be dead." Radbord declared, expounding on the basic premise of the test: groups that are relatively different should be treated differently and groups that are relatively the same should be treated the same.

The position of the government of Canada is that if there is a fit between the purpose of the law and those that it includes and excludes, and then the law must be excluding the right people because they are relatively different. Joanna dismissed this approach as both reductive and wrong.

Joanna asked the court to turn to the two volumes of reply evidence that she, Martha McCarthy et al had stayed up late into the night preparing.

"Oh more!" quipped Justice Smith in mock delight.

The court laughed as the court clerk distributed the latest round of slaughtered trees to the bench. Justice Smith in genuine disbelief then asked, "You managed to assemble this?" The familiar sound of the wee small hours hung heavy in Joanna's voice as she admitted, "It's been a long night, or morning."

Directing the Justices to the appropriate tab in her documentation, Joanna outlined the approach to Charter cases that the court had laid down. It is a three-step test to evaluate whether there has been a breach of the Charter under section 15:

1. Is there a formal distinction being drawn between the applicant(s) and other groups? In this case, the couples were denied a marriage license while other couples are granted them. This is a formal distinction.

2. Is this distinction being drawn on the basis of one or more personal characteristics that are protected under the Charter (sex, race, religion,…) or a characteristic that is analogous. In the case of sexual orientation, it is not specifically mentioned in the Charter, but the Supreme Court has ruled that it is to be considered in the same light for the purposes of evaluating discrimination. In this case, it is the sex and sexual orientation of the couples that is the basis for the differential treatment.

3. From the point of view of the applicant, does this differential treatment damage or degrade the dignity of the individual. In this case the refusal to grant marriage licenses reinforces the negative social message that our relationships are somehow inferior to those of heterosexual couples, damaging the self-respect of gays and lesbians.

If you find that all three conditions apply, then you have found that there is discrimination under the Charter and the onus of proof shifts to the federal government in order to prove that the discrimination can be reasonably and demonstrably justified in a free and democratic society.

Joanna pointed out that the Attorney General's case had asked the court to consider several reasons and justifications for the exclusion of gays and lesbians from the institution of marriage. She indicated that in doing that, they were urging the court towards the defunct method of Charter scrutiny that had been replaced by the substantive equality approach as outlined above - an approach that the Supreme Court has unanimously adopted as the correct method. Justifications and relevance belong in a section 1 analysis, not in an attempt to prove there is no discrimination.As a further note on the "justifications", Joanna pointed out that the use of biological differences to draw distinctions between same-sex and opposite sex couples had been debunked in the case of M & H.

Defining marriage by not talking about it

Another assertion that the government had made that needed to be clarified was the assertion that the Supreme Court had ruled against same sex marriage in M & H. Joanna pointed out that the majority decision of the Supreme Court had been quite explicit that it was not tackling the issue of marriage when it was deciding that case, so the opinion of one Justice in a dissenting opinion, could hardly be characterized as the court having decided a matter it so clearly stated it was not ruling on.

Marriage is non-discriminatory - The Magic Marker Defense

Joanna moved on to refuting the claim that marriage was "just a marker" and that it was not in and of itself discriminatory, you could see the justices move uncomfortably in their seats. It was clear that they were rapidly approaching information overload and that any points from here on in would be hard won.

Joanna turned to the case of an American slave who sought damages in an assault case and who was denied them because the US Supreme Court determined that slaves were not citizens and therefore they were not entitled to the rights and privileges of citizens. Judge Smith asked if the case was analogous to the Dred Scott decision, in which the US Supreme Court had ruled that slaves were property and not people. Joanna tried to point out that her analogy was to the marker of citizenship being used like the marker of marriage, but Justice Smith interjected:

"I see the analogy", Justice Smith said, "I just don't find it compelling."

Joanna's efforts at debunking the argument that the Charter could not give access to words were more readily received. She pointed out that words have changed in the past to reflect the changing attitudes around specifically family issues. At one time, Joanna argued, children born of unmarried couples were stigmatized with labels like "bastard" or "illegitimate" with the legal stature of child reserved for those who had been conceived in wedlock - a distinction that we no longer make.

It seems that language has the flexibility for inclusiveness and could fulfill the aspirations of the human spirit if only we would stop fettering it with our own prejudices.

The Witness Boxing Match - Round I

Martha McCarthy, seated next to Joanna kept glancing with growing anxiety at the clock and gently tapping the table, however Joanna was not to be dissuaded as she launched into her critique of the government's critique of the evidence presented and in particular their attacks on Dr. Rosemary Barnes.

Several long minutes ensued of Dr. X rebuts what Dr. Y said about the characterizations of Professor Z in relation to marginalization. Several heads began to swim as titles, designations and opinions flew thick and fast. Justice Blair, trying to convey what was on his mind most posed a single question:

"How do we weigh the evidence when we have people of validity on both sides offering differing compelling evidence" he said, looking with slight trepidation and the ever-growing mound of cerlox bound pulp that was accumulating on his left. Joanna suggested that the correct approach would be to look at the curricula vitas (if anyone knows the proper declension of the Latin noun and adjective, I would appreciate input) of the various experts, read their evidence in light of their expertise and make a judgment.

Joanna then read a passage from one of the expert witness at the wend of which, Justice Blair took up his theme again by asking, "Is that a fact, an opinion or an argument?" He then re-iterated that the panel was having difficulty sorting through all of the experts to get to the truth. He indicated that this was a problem for both sides in the case.

The Witness Boxing Match - Round II

Having overstepped her allotted time, Joanna and Martha did a quick switch at the podium and Martha lightened the mood of the court by asking what the remedy was when your co-counsel went over her allotted time. Then with a slightly renewed sense of energy in the court, Martha began by saying that the Attorney General's characterization of our case as "unwilling to submit to the tests of section 1" was completely false. Martha said that she would welcome a section 1 scrutiny and invited the court to do so. All that Martha wanted the court to realize was that in cases where there is a breach of the Charter by a common law rule, then section 1 analysis is unnecessary.

Martha started to explain why in a section one analysis the government case failed at every stage, but Justice Blair, who seemed to be losing patience rapidly, reprimanded her, saying that in main arguments she had already argued for the failure of the AG's case, and that she was to stick to rebuttal of the AG's evidence.

Martha then said that she would walk the court through the flaws in the AG's section one analysis. The government had tried to use circular reasoning in order to argue for the pressing need to keep marriage to opposite sex couples only. The AG had argued that the purpose of defining marriage was to preserve the common law rule and the purpose of the common law rule was to define marriage. Martha with laser like precision, indicated that such reasoning was not acceptable in a section one analysis where the onus of substantial proof is on the government " not stereotypes, not speculations, not opinions, but reasoned and rational proofs. In the absence of evidence, the law must perforce fail."

Justice Blair took up his theme again of how to make sense of all the evidence and there were several spirited minutes between Martha and the bench, on the nature of constitutional litigation and how to evaluate the reams of documented evidence that accumulates. Justice Blair mentioned that they hadn't had a chance to talk to Dr. Barnes and Martha replied that she would love to call Dr. Barnes. As to the need for the mountains of evidence, Martha finally openly admitted the reality that things are going another round in the judiciary complained that without all the evidence, the Supreme Court when the case arrived, would have nothing on which to base its opinions and would argue that they could not decide the case in a vacuum.

Besides, Martha went on, if the AG had problems with Dr. Barnes at least she was more reliable than, but Justice Smith cut her off…

"We have had enough on whether a is better than b, c, d and e" she warned.

Martha moved on, but not without a parting shot to the AG's experts when with extremely careful off-handedness she remarked, " I have some more information on Professor Young but we won't discuss her further…" The courtroom laughed at this "blow after the bell had rung" and even the Justices eyes twinkled with mischievous mirth.

The next attack on the AG's case arose from the assertion that "no other free and democratic society had considered this". In rebuttal, Martha offered 4 US "Free To Marry Cases" and in particular drew the courts attention to a case in Hawaii. Using the same deliberate casualness, Martha remarked that a "significant costs award" had been made in the Hawaii case. Again the court was amused - Martha was on a role.

Martha next attacked the notion that this was a case where the rights of two groups were competing. She made it clear that in those cases, deference to parliament is usually made in order to strike the balance between the two groups. In this case, however, there was only one group whose rights were being trampled on and there was no room for deference to an institution that had traditionally dragged it's heels on gay and lesbian justice issues and which during debate permitted statements like:

"Homosexuals and lesbians negate themselves, negate society. It is the promotion of moral corruption and the denial of human beings. it is wrong and unacceptable."

There is no need for parliament to study a situation that they have been aware of and unwilling to act on for so long. Martha, her voice alive with passion, charged the court as "the custodians of common law" to remedy the situation without waiting for government, bringing back echoes of Monday when she spoke of "rights with no remedies"

Remedy II - Blind Justice.

Curiously, it was the issue of remedy that brought about the most heated exchanges of the afternoon. Martha urged the court to remember section 52 of the Constitution and if they found discrimination in the common law, she urged the court to declare the law, to the extent of its impediment, of no force or effect. In this case, declare the common law bar to same-sex marriage of no force or effect.

Justices Smith and Blair both returned to the point that there was no common law "bar" to same-sex marriage. There was a common law rule that defined marriage as between a man and a woman and that to strike down the "bar" would be to effectively declare that no one could get married.
Photo by: Kevin Bourassa
The circular ceiling in the library of Osgoode Hall.

"It's quite a sweeping recommendation," said Justice Blair.

Martha, however uncomfortable the Justices appeared at what was being presented to them as their options, would not budge:

"There is a legislative void, there is a common rule, and you're the custodial person … and you have experience crafting common law rules and the task is upon you… You have to give a remedy."

Finally, Martha asked the court to consider what threat there was in allowing gays and lesbians to marry. She argued that there would be no sudden end to procreation and that straight people would not stop falling in love. All that would happen would be the inclusion of Canadians into the fold and that inclusion needed to happen via judicial pronouncement. As the Supreme Court had noted, a disadvantaged group could not be expected to sit back and wait for their rights to be given to them a tiny piece at a time.

And with a collective deep breath, the entire courtroom turned the decision over the future of ten couples to the three custodians of the common law, as the statue of Blind Justice smiled down upon us all.

Kevin and Joe
November 9, 2020

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