prend mon mari prend mon pays (Who takes my husband, takes my country)."
Discrimination and bigotry are not yet a thing of the past in Quebec or in Canada, Me. Goldwarter told the court.
The Constitution is intended to be a progressive, growing document, which confers legislative authority, not restricts it. The definition of marriage cannot possibly be intended to be frozen in time at 1867.
Here, religious intervenors are saying that no same-sex couples should be allowed to marry - even if the couple is not religious.
Day One - November 8, 2001
It was certainly a day of great excitement at the Montreal Palais de justice.
Counsel's seats in
the courtroom are arranged in a semicircle around Judge Louise Lemelin,
and 5 omnidirectional microphones suspended from the ceiling afford ample
opportunity for Me Goldwater to be heard as she paces and
Me Goldwater began by explaining that we were all gathered as witnesses to a marriage - which, given that we expect to be fighting the case for years to come, might prove to be a very long ceremony.
She and Me Dubé
then called each of Michael and René to testify, which they did
very movingly. They told the Court that they had been together for 28
years, and had dated for three years before purchasing a house where they
had lived ever since. Michael spoke of how he had come to Montreal from
the U.S., met René and struck a chord with the Court by citing
the proverb "Qui prend mon mari prend mon pays" (who takes my
husband, takes my country). At different times in the relationship, they
have supported each other in many different ways. Michael spoke powerfully
of their experiences throughout the many difficult years in the evolution
of the community, particularly during the advent of HIV/AIDS. René
spoke about the role model Michael has
The other parties declined to cross-examine, although our lawyer Noël Saint-Pierre (representing the Coalition) asked some follow-up questions about the impact of lack of marital recognition.
Me Goldwater (who
speaks about three times more quickly than me - an impressive feat) then
said to the Court that as a family lawyer, she so often represents couples
at the other end of the relationship, when love is gone, and the Courts
are left to pick up the pieces, and how rare an opportunity it was to
have two people who came through her doors, saying
She also explained that this is really a simple case, and that she really felt she didn't need 2 days, but could argue it in 5 minutes. She said, however, that she had failed to reckon with the fact that discrimination and bigotry are not yet a thing of the past in Quebec or in Canada.
She certainly grabbed
our attention by pointing to a gentleman in the front row of the public
seating and declaring that she was not going to speculate about what sexual
activities he was performing last night, that it was none
Me Goldwater then went on to look at the constitutional issues. Unlike the other jurisdictions, which are focused on the common law, there are 3 statutes being challenged in the Quebec case:
(i) art. 365 of the
Quebec Civil Code, which contains an opposite-sex definition of marriage;
Article 365 of the Quebec Civil Code was argued to be outside the jurisdictional competence of Quebec, a fact implicitly affirmed by the passage of Bill S-4, which re-enacts the same definition at the federal level. The Government of Quebec argues that the Quebec Civil Code merely reflects the valid federal definition, but Me Goldwater said this is unconvincing, since her clients were denied a marriage licence based on the Quebec Civil Code prohibition, before Bill s-4 even existed.
A predecessor to
Bill S-4, Bill C-50, initially contained a gender-neutral form of the
clause. This was changed to specify that marriage requires "a man
and a woman", however. Explanatory notes indicate that the federal
government felt that all the other provinces were governed by the common
law definition of marriage set out in Hyde v Hyde, but that it was necessary
to legislate this definition in respect of Quebec, which is not a common
law jurisdiction. Me Goldwater accepted that Bill S-4 is validly within
Section 1.1 of the Modernization of Benefits and Obligations Act is generally agreed to be an interpretative clause only, but is also being challenged for good measure.
Me. Goldwater also
addressed the argument that "marriage" in the Constitution is
intended to be restricted to opposite-sex marriage only. The Constitution
is intended to be a progressive, growing document, which confers legislative
authority, not restricts it. The definition of marriage cannot possibly
be intended to be frozen in time at 1867. Me Goldwater read from the 1866
Civil Code, which provides that a husband exercises full authority over
his wife, that she had no right to refuse to submit to sexual intercourse,
that she was required to follow and obey her husband, that she
Me Goldwater declared herself further unimpressed with the federal argument that heterosexual marriage is a universal norm. As she pointed out, war, slavery, sexism and child abuse could also be described as "universal norms", having existed across history, culture, race and religion.
She also pointed out that there was no conflict between religion and sexual orientation, as argued by the religious intervenors. Here, same-sex couples are not asking that religions be forced to marry us, and the religious groups are not just saying they should not be required to marry same-sex couples. Indeed the Civil Code protects religious leaders from being required to perform marriages other than in accordance with their own faith. Here, religious intervenors are saying that no same-sex couple should be allowed to marry - even if the couple is not religious!
Me Goldwater examined
the range of benefits which married couples obtain in Quebec. Unlike most
other Canadian provinces, Quebec maintains a sharp distinction between
the benefits accorded to unmarried couples and those accorded to married
couples. Heterosexual common law couples have a choice, however, every
day of their lives, to marry and have access to all the benefits and obligations
of marriage. Michael and René have no choice. They can move to
a different province, and have access to much greater
Tomorrow, Me Goldwater
will continue with the s.15 Charter issues .
John Fisher - EGALE