Egads!  It's Egan again!  The Attorney General of Canada can't see the trees for La Forest - a reliance on undeclared minority opinions

 

 

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"We should not take for granted that men and women will come together to form a durable institution. They will come together, but whether they will use marriage is another question."
The Attorney General of Canada, April 23, 2003

 

 

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"If marriage is a relationship between two committed people, I lose. If it is between a man and a woman, than it must stay."
David Brown, The Association for Marriage, April 23, 2003

 

 

 

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"If the state was to redefine marriage, the Islamic religious beliefs would be invalidated," Jervis claimed. "It would be harder for muslims to participate in Canadian society ... sending confusing messages to muslim youth" with resulting "alienation of muslim children in Canadian communities" which would cause "a conflict for muslims."
Peter Jervis, The Interfaith Coalition, April 23, 2003

 

 

 

 

"This case presents both the simple and the profound, the incremental and the revolutionary. One day people will wonder what all the fuss was about. It is about one of the most crucial events in the lifecycle."
Martha McCarthy, April 23, 2003

 

 

 

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"... we ask the court to consider weddings that you have experienced, the wedding day of your children or your parents ... then imagine that someone said that your parents, or your children, or you could not marry because of the wrong race or religion ... The AGC has urged this court to consider context, and has framed this context solely from the perspective of the government ... it is a code word for heterosexual."
Martha McCarthy, April 23, 2003

 

 

 

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"When you consider Bill C23, or the committee road show, consider it from the perspective of gays and lesbians who see this as yet another tactic to defeat our rights ... do not trust these strategies. Do not hope that things will be done ... parliament has shown legislative denial and avoidance."
Martha McCarthy, April 23, 2003

 

 

 

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"The onus is on the government to justify the rights infringement and they can't explain it away with a discriminatory rationale. They tried to take away the protections of the Charter."
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Legal - Ontario Appeal - Day 2

April 23, 2003

Egads! It's Egan Again!
AGC can't see the trees for La Forest
A reliance on undeclared minority opinions


As has been our custom, the day began at 10:30 a.m. with Mr. Doug Taylor giving us some more details about the historic property that hosts our marriage appeal case. Yesterday we had heard about many of the decorative elements that had been produced by machine. Today we were told about hand finishing around the doors and on some pillars. The window surrounds' nice peaks, that are replicated on the bench, and some architectural details inside the court room, are replicated outside as well. When this room was built (1888), Queen Victoria was still on the throne of England. After her death, when King Edward came to the throne, his king's coat of arms was put in place above the judges' seats. The room's electric chandelier is a replica of the room's original gas chandelier, based on a historic photo in which the chandelier was sketched into the photo in 1891 (at left).

The Attorney General Of Canada

Roslyn Levine (Roz), the lawyer representing the Attorney General of Canada (AGC), continued her presentation, returning to a question from Justice MacPherson about the substance of Bill C23: the bench indicated that this bill was primarily about financial benefits. The AGC had promised to bring in a list of all the impacted acts/statutes and she proceeded to read off the list. Without knowing the contents or details behind the list, they still sounded mostly financial in scope and no further questions were asked.

External link to the Canadian Charter of Rights and FreedomsAssuming that our equality rights (section 15-1 of the Charter) have been violated, it was time for the AGC to present her case for "justified discrimination", based on Section 1 of the Canadian Charter (at left in our sidebar).

The AGC said that the first test, to determine if section 1 of the Charter is applicable, is to ask whether the objective of marriage is pressing and substantial. Justice Laforme, in our first appearance at Ontario divisional court, asked the wrong question which set up for the wrong conclusion, according to the AGC. Justice LaForme appeared to look at the infringing object of the common law rule rather than the institution of marriage itself, to determine if the infringement was justified.

According to the AGC, Justice Laforme also erred in stating that procreation was only recently introduced as a rationale against letting same-sex couples marry. One could see it coming before it was out of her mouth. Yes, just like day one of our appeal, the AGC harked back to her dependency on a Justice La Forest's minority opinion in the Supreme Court of Canada case, Egan, in which La Forest stressed the importance of procreation in the institution of marriage. As usual, the AGC said "the court" had no trouble in saying that procreation was part of marriage, when in fact "the court" (i.e., the majority opinion) said no such thing.

The AGC said the objective of marriage was to act as a way of organizing society, which included opposite couples with the potential for children, and excluded same-sex couples (with or without the potential for children). This was the pressing and substantial reason to deny same-sex couples the right to marry (i.e., justified discrimination).

Pressing and Substantial Objective

"We should not take for granted that men and women will come together to form a durable institution. They will come together, but whether they will use marriage is another question," the AGC said.

Then, taking a particularly Christian perspective, she said that "we have seen over the past 2000 years that it has served its purpose." Speaking as the AGC, one might have expected her to keep things to 150 years (the time since Canada's conception).

Justice MacPherson said that once discrimination has been identified, one must show there is a "pressing and substantive" objective to the exclusion.

"Of course marriage is a valued institution," the Justice said, "but you have to say same-sex couples are excluded because: and then fill in the blanks."

Historice photoraph of Courtroom two, used to reconstruct the chandelier.   The King's coat of arms is missing from the top of the judges' bench
Historic photo of courtroom two, used in reconstructing the chandelier. The king's coat of arms is missing from the judge's bench (photo was taken during the rein of Queen Victoria).

The AGC replied that it was her understanding that "you look at whether the exclusion is justified and is minimally impaired by excluding them ... You look at the total package of the legislation, including the breach to determine if the legislation has a pressing and substantial objective to exclude someone ... if you define your purpose and objective by a certain group, the purpose and the definition will be closely tied ... the purpose and the objective of the exclusion will be one."

This was a return to the AGC's circular argument: marriage just is heterosexual. And besides, she maintained, Canadians want to keep it that way, depending on how a poll question is asked and how you interpret the results. Further, she said the parliamentary debate showed that the legislatures wanted to maintain marriage as an opposite-sex institution. There was a rational connection, she maintained, and then went back to her favourite Supreme Court citing. You guessed it: the Egan minority opinion of La Forest, still unidentified to the court as a dissenting view.

Minimum Impairment

Another factor that must be examined, when making a decision to maintain discrimination, is whether the impairment caused by the discriminatory law is minimal. The AGC claimed Bill C23 provided the financial benefits, but also the respect and inclusion in society that gays and lesbians are looking for. The AGC referred to LGBT groups and individuals that supported Bill C23 and read from statements they made, but these statements had been issued prior to the government's inclusion of a preamble definition of marriage: "one man and one woman to the exclusion of all others."

Besides, the statements from these groups all sounded like they were encouraging steps along the way, applauding the journey, not the destination:

"the bill provided important steps",
"a far more coherent and effective manner",
"level field in financial matters", and
"a degree of respect for gay and lesbian relationships".

None of the above sounded like full equality had been achieved, and the Chief Justice seemed to agree.

"It's not surprising that these quotes focus on significant progress ... you are saying that they were applauding the decision of parliament to define marriage as heterosexual."

The AGC replied that Bill C23 (the object of the quotations), "addressed equality. It really did relieve discrimination."

"They don't say that they removed it," Chief Justice McMurtry said.

The AGC said that "formal recognition is another issue, but this is outside of the federal jurisdiction."

Maybe I was in the wrong courtroom, I thought. We are talking about marriage aren't we? Marriage is formal recognition, and it is in the federal jurisdiction. Then I remembered the AGC's use of the term "netherworld" during day one of the appeal and I realized that marriage, in her mind, couldn't possibly include us, by definition.

Besides, the AGC maintained that gays and lesbians were free to choose life partners, so when you have other choices, besides marriage, how can anyone say we are impaired by this exclusion?

Proportional Perspective - Life in the Netherworld

Another test, in determining if discrimination is justified is to ask if the benefit of exclusion outweighs the harm of inclusion (the proportionality test). Last time, in divisional court, the AGC has suggested all kinds of terrible things would happen. At that time, the AGC made her infamous admission that her argument about the dire consequences of same-sex marriage appeared "lame".

This time the AGC said, "We don't know ... how can we gaze in the crystal ball in an educated way." But still she maintained that bad things could happen, although she did admit "the sky would not fall."

"I am confused by that," said Justice Gilles. "How would it be that you think that it would unravel marriage?"

"When it becomes another concept," the AGC said, "all of the beliefs that go with that concept are necessarily changed. It is not seen as an institution that is meant to bring the opposite sexes together. It would be seen as a companionate model."

My Webster's defines "companionate marriage" as "a proposed form of marriage in which legalized birth control would be practiced, the divorce of childless couples by mutual consent permitted, and neither party would have any financial or economic claim on the other." This AGC's use of the term was clearly not what marriage would become (given existing laws of Canada) if same-sex couples were allowed to marry. But the AGC seems to throw aside logic in her Lewis Caroll-like "netherworld".

"The idea of child bearing and rearing would change," the AGC added, reflecting a dim view of the public. "People would not understand that people normally get married and bear children."

The AGC seemed to imply that people might reproduce less if same-sex couples were no longer excluded from marriage. Men would potentially have "identity problems" and same-sex couples might "break a thread between men and women" because "men and women might not cooperate."

No kidding.

To support this, the AGC returned to ... all together now: the minority opinion of Justice La Forest in Egan. Some things never change.

The Association for Marriage and the Family in Ontario - David Brown

Next up, we had Mr. David Brown, speaking for an intervener, The Association for Marriage and the Family in Ontario. Mr. Brown said that marriage is not controlled by a judge made common law (our position), nor is it something controlled by parliament (the AGC's position). He maintained that neither parliament nor judges can change marriage. It was a constitutional issue.

"Is it fair to say you are alone in that [thinking]?" Justice MacPherson asked. Laughter filled the courtroom.

"Well Pitfield agreed," replied Mr. Brown, referring to the widely discredited judgement in the B.C. marriage case.

The word marriage has a constitutional meaning, Mr. Brown maintained. To change the definition, one must go through a constitutional process, not through the courts or parliament.

"Any change in the meaning of marriage must respect the division of power between the feds and the provinces," Brown said.

The federal government owns the definition of marriage, while the provinces get to regulate the forms of marriage solemnization. Brown argued that if parliament changed the definition of marriage, or if the courts change the definition, a redistribution of the power over social rights on marriage would occur, which would be unconstitutional.

"This case is singular in that it would change the allocation of powers between the federal government and the provinces," Brown said. "The court should tread carefully in exercising its jurisdiction to change the common law ... there are limits in how far that can go."

Justice MacPherson mentioned a list of constitutional experts and asked, "Is there anything in constituional writing that would come close to what you just said?"

Noticing his own name wasn't in the list of citations, Brown said, "You forget Brown!" He paused while laughter again filled the court room, and then answered, "No."

Brown than went on to address the Supreme Courts view of the constitution as a "living tree". The federal government cannot say that we extend the living tree and than "tread all over provincial jurisdiction."

Michael Leshner (holding the umbrella) and  Mike Stark, two of the applicants in the Ontario civil marriage case, outside of Osgoode Hall (Photo by equalmarriage.ca, 2003)
Michael Leshner (holding the umbrella) and Mike Stark outside of Osgoode Hall during yesterday's press conference.

A veil of ignorance

Brown than entered a discussion about the meaning of words with ambiguous meaning and those with definite meaning.

"When it comes to the appropriate framework of judicial interpretation of a word there is greater latitude when the word was ambiguous, but one of the natural limits of the courts to exercise restraint is when you are asked to change the meaning of a word, rather than to resolve ambiguities," Brown said.

"How do you know when a word is ambiguous or not?" Justice Gillese asked.

"You have to look at the historical record," Brown replied. "There is no uncertainty about what marriage meant."

"To whom?" Justice Gillese probed.

"To everyone! Was there a single person who thought that marriage, back during the constitution meant anything but a man or a woman?" Brown asked, his voice showing consternation. "... you are not being asked to change an ambiguous term."

Brown echoed the AGC's circular logic (definitional preclusion) that marriage just is heterosexual.

"Where is it in the Charter that says you have to ignore what was understood for 2000 years?" he asked.

"Why is it ignoring it and not supplementing it?" Justice Gillese asked. "If the purpose of marriage is to regulate and support two people in a committed relationship ..."

"That is not marriage," Brown replied. "If marriage is a relationship between two committed people, I lose. If it is between a man and a woman, than it must stay."

"Not necessarily," Justice MacPherson said.

Great weight has to be given to the historical record; otherwise we "forget the past and stand behind a veil of ignorance."

"That is where I have lost you," Justice Gillese said. "How if the word marriage continues to regulate the relationship between men and women, but is expanded to regulate same-sex couples, do you lose the original purpose?"

"That is not the question that is before you," Brown answered. "That is a social policy ... the finding this court has to make is finding a constitutional violation, not whether same-sex marriage is a good idea."

Mr. Brown lost me too, but then I think that is his client's hope and intention.

The Interfaith Coalition on Marriage and Family
Peter Jervis

"This is a very profound issue, a profound social change you're being asked to engineer through common law," Mr. Jervis said in his opening. "It's extraordinary."

Jervis maintained that it is beyond the proper exercise of the court's jurisdiction to change the judge-owned common law definition of marriage because it "ignores the proper dialogue between the legislatures and the courts."

It seems that Mr. Jervis trusts parliament to do his client's bidding by maintaining the status quo.

"Marriage is not a legal construct," Mr. Jervis claimed. "We're not dealing with a common-law construct. This is a pre-existing social institution ... a religious institution ... to Catholics it is a sacrament."

Jervis said that if same-sex couples were included in marriage, than all Canadians would experience a redefinition of the concept.

"The applicants are asking that a fundamental institution be redefined for everybody. For the people that I represent, the institution would be perceived as different for all of them ... the institution would be perceived as different across the land," Jervis said. "This is all about social acceptance and recognition."

Church and State

And of course the religious groups that Jervis represents are concerned that their anti-gay teachings would be contradicted in the realities of the world outside of their faith communities and homes.

"If the state was to redefine marriage, the Islamic religious beliefs would be invalidated," Jervis claimed. "It would be harder for Muslims to participate in Canadian society ... sending confusing messages to Muslim youth" with resulting "alienation of Muslim children in Canadian communities" which would cause "a conflict for Muslims."

"We want to fully participate in this country and cultures."

I took that to mean his clients want religious dogma to be reflected in state laws and effectively make us a religious state. Jervis went on to say that the perception of religious people may be impacted. In divisional court, this same argument was used: they were afraid of being perceived as "nut bars" for their anti-gay stance.

His clients "want the law developed with their perspectives" and "they want to be able to live a life of faith, not only in religious communities."

Besides, Jervis maintained, the government "has responded very quickly", referring the Standing Committee that was struck to look at marriage following our July 12, 2002 victory in Ontario divisional court.

"I don't see in the record that gays and lesbians have been turned down," Jervis said, perhaps with selective memory.

The Canadian government has delivered rights to gays and lesbians only when ordered to do so by the courts, piece by piece, with his clients fighting progress every step of the way.

"Should there be a declaration that the definition of marriage contravenes the Charter and be struck down? I say no," Jervis said.

Attorney General of Ontario & City of Toronto

In quick order the province of Ontario and the City of Toronto both said that they do not take a position in our case and that their hands are tied by the federal ownership of the definition of marriage. Therefore, the city cannot issue marriage licenses and the province cannot register them.

Applicant couples for civil marriage
Martha McCarthy

At last it was time for the side fighting for same-sex marriage to respond.

"Good things come to those who wait," said Martha McCarthy in her opening statement. "It's finally our turn. This case presents both the simple and the profound, the incremental and the revolutionary. One day people will wonder what all the fuss was about. It is about one of the most crucial events in the lifecycle."

Martha McCarthy (Photo by equalmarriage.ca, 2001)
Martha McCarthy

McCarthy said that the government's case against same-sex marriage failed every step of section 15 of the Charter, and section 1 "tickety-boo". She described "a simple case" involving judge-made law that "doesn't require legislative deference".

This case is a "litmus test of the Charter. It is as profound as Brown v. Board of Education [school segregation] or the Persons case [recognition of women], and Loving v. Virginia [interracial marriage]."

McCarthy said, "Just because it's hugely important doesn't make it hard. It is as easy as Brown has come to be seen with the passing of the years."

The prohibition against same-sex marriage "has passed the test of time." McCarthy said that the opposite-sex definition of marriage has become "the label" but she warned the court not to "repeat the mistakes of discrimination".

The court was told that they were being asked to recognize the "personhood" of gays and lesbians. To underscore the point, McCarthy referred the court to pictures of the applicant couples, to dispel "theoretical arguments".

"They're [the couples] not talking about some other kind of love that the AGC would describe as less equal ... we ask the court to consider weddings that you have experienced, the wedding day of your children or your parents ... then imagine that someone said that your parents, or your children, or you could not marry because of the wrong race or religion ... The AGC has urged this court to consider context, and has framed this context solely from the perspective of the government ... it is a code word for heterosexual."

McCarthy talked about continued marginalization, "A world, and we all know it, of cocktail jokes about gays and lesbians. The AGC wants to sanitize these effects ..."

Mathew Sheppard was invoked when Justice MacPherson interrupted.

"There's not a hint about Mathew Sheppard in this case."

McCarthy referred the Justice to the Committee hearings that the AGC and the Interveners had mentioned, in which the most terrible things about gays and lesbians had been spewed. She affirmed that she was talking about "context."

"Walk a mile in our shoes," she said. "It is a lesson of human rights cases, that it is only be adopting the perspective of the rights holder that we can truly appreciate the nature of the infringement."

Gays and lesbians should not have to wait patiently by while their rights are being infringed, McCarthy maintained. "When you consider Bill C23, or the committee road show, consider it from the perspective of gays and lesbians who see this as yet another tactic to defeat our rights ... do not trust these strategies. Do not hope that things will be done ... parliament has shown legislative denial and avoidance."

Justice MacPherson asked, "You've moved to remedy?"

"No," McCarthy replied. "I'm dealing with the context ... you have to consider the history of legislative neglect."

Justice MacPherson continued to question the connection of legislative neglect to context. McCarthy related it to the AGC's call for deference and said it was part of the "introductory big picture" but she shifted her approach and moved on to comments on the evidence.
Osgoode Hall (Photo by equalmarriage, 2001)
Osgoode Hall

Problems with the case against same-sex marriage

McCarthy outlined several problems and gaps in the AGC's case, including:

  • The AGC refers to the minority opinion as "the court" in the Egan case an estimated "more than 20 times."
  • AGC's witnesses (affidavits) lacked expertise and much of their opinion was "speculative".
  • The AGC ignored M v. H, a landmark case that set the stage for same-sex marriage, and the reason why Bill C23 was introduced by parliament.
  • The Hyde case (from which the "one man and one women" was derived) was about polygamy, and therefore it was about the "one" and not the "man and woman".
  • There was a misuse of the words "context" and "substantive equality". Substantive equality is not something less than formal equality. It rejects formal equality and offers much more.
  • The AGC ignored Alaska and Hawaii cases that found the same equality violation (although in both cases, the legislators cut the case off at the knees).
  • Religion is not relevant to this discussion. It is the morality of the charter that governs, not religion.
  • The appeal to history is not conclusive. Things change. Women were recognized as people (Persons case)
  • The use of circular logic in the definition of marriage - marriage just is heterosexual (definitional preclusion).

This last point was very significant, McCarthy stressed. "If this court rejects definitional preclusion as being inaccurate, irrelevant, and contrary to the Charter, there will be nothing left to the AGC's case."

"Some definitions do have a gender component to them," Justice MacPherson said. I couldn't be a nun because I am a man."

"Well religions are allowed to discriminate," Martha said. She added that it was an issue of context. Men are not part of a historically disadvantaged group subject to discrimination and stereotyping.

"... the government doesn't want to resolve this issue," Martha concluded. "Gays and lesbians should not be required to stand patiently by."

Applicant couples for civil marriage
Joanna Radbord

Joanna Radbord than addressed the court to deal with analysis of the equality principles in the charter and the issue of whether it could be justified that these rights be ruled out for the good of the country.

"The onus is on the government to justify the rights infringement and they can't explain it away with a discriminatory rationale," Radbord said. "They tried to take away the protections of the Charter."

Photo by: equalmarriage.ca, 2001
Joanna Radbord

Radbord outlined four major errors in the AGC approach to our equality guarantees (Section 15 of the Charter):

  1. It relies on definitional preclusion.
  2. AGC wants a relevancy test (similarly situated test)
    • Section 15 was developed in response to section 1 in the fill of rights. A similarly situated test is where those who are similarly situated are treated alike and those that are relatively different are treated differently.
    • Reliance on biology should be rejected.
    • AGC says it does not intend to discriminate. Intention is not important, it's the effect and impact that needs to be examined.
    • This test doesn't work to uncover discrimination.
  3. The AGC argues that there should be a reasonable person test from their objective perspective, rather than the required subjective-objective perspective.
  4. The AGC avoids the contextual approach from the perspective of the affected group, and instead uses a historical approach

With that, we concluded our day, midway through our hearing.

Kevin Bourassa

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