"Me. L'Esperance (counsel for the Attorney General of Canada) began with the insulting suggestion that there was no discrimination in this case in any "real" sense.

The Attorney General's position is that only the federal government can change the prerequisites for marriage ... solemnization of marriage reamins with the provinces.

Judge Lemelin interrupted him, commenting that procreation is not the primary purpose of marriage.

Judge Lemelin commented that same-sex couples have no choice to marry, and she asked the Attorney General of Canada if he supported the position, of the religious intervenors, that homosexuality is itself a choice. He said he didn't.

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Quebec

Day Three - November 12, 2020

Today, counsel for the Attorney General of Canada, André L'Espérance, delivered his arguments, and I must say it was considerably less interesting than the dynamic presentation of Me. Goldwater. After hearing the phrase biological reality for about the 100th time, even his co-counsel was having a hard time keeping his eyes open.

Me. L'Espérance began with the insulting suggestion that there was no discrimination in this case in any " real " sense. He then replied to a number of Me. Goldwater's arguments, saying :

- the case has nothing to do with women's right to choose whether or not they want to procreate, so the Morgentaler decision is not relevant;

- It's important to distinguish between the definition of marriage, which is up to the federal government, and the benefits which flow from it, which is up to the provinces;

- the Courts in their decisions have treated the incidents of marriage separately from the institution itself, when recognizing the right of unmarried couples to equal benefits. Why? To protect the definition of marriage, apparently.

- this is not about whether it's desirable to redefine marriage, which is a political issue, but about whether government can be forced to do so by the Courts.

Me L'Espérance graciously acknowledged that the political process can be a wee bit on the slow side, and that he could understand why some people might get frustrated with it, but that was no reason to short-circuit the political process. He neglected to mention, however, precisely when the
federal government is planning to introduce a Bill allowing same-sex couples to marry.

Me L'Espérance then explained the AG's position that only the federal government can change the prerequisites for marriage, such as age, consanguinity, gender and number of people who can marry etc. Solemnization of marriage remains with the provinces. The federal government enacted Bill S-4 to harmonise federal and provincial law; they did not, however, change the Civil Code requirements, merely re-enacting what was already there.

He referred to Me Goldwater's argument that Bill C-50 had a gender-neutral definition of " spouse ", but insisted that " spouse " in the context of the Civil Code was always intended to refer to married spouses only.

When he once again mentioned that the definition of marriage reflected a biological reality, Judge Lemelin interrupted him, commenting that procreation is not the primary purpose of marriage, and citing the example
of an elderly couple wishing to marry.

Me L'Espérance replied that that was different, that the current definition of marriage reflects a biological reality, a difference which exists, and that the government can recognize a biological reality without making value judgments or denigrating those who don't meet the definition. He then
repeated the words "biological reality" an extra couple of times, just for good measure.

He cited the four contextual factors mentioned by the Supreme Court to help identify discrimination, and even went so far as to suggest a fifth contextual factor that the Supreme Court carelessly omitted to mention, namely the way in which the nature of the case affects the values of others. Even better, he explained that marriage doesn't exist *for* procreation, but *because of* procreation.

He went on to cite the position of some of the judges in the Miron case that marriage is not in and of itself discriminatory, because it reflects a personal choice. Judge Lemelin commented that same-sex couples have no choice to marry, and asked him if he supported the position of the religious intervenors that homosexuality is itself a choice. He said he didn't, but comments that same-sex couples can exercise their choice by having access to some institution other than marriage, and that we don't need to extend the
definition of marriage to give them the same rights and responsibilities. In his view, the Applicants were primarily interested in the benefits that flow from marriage.

Judge Lemelin replied that the Applicants were seeking two things: access to the benefits, but also societal recognition of their relationship. Me L' Espérance said that equality nonetheless allows the Court to make certain distinctions. When? (All together now:) "When the law reflects a biological reality!" We don't have to destroy the institution of marriage
to recognize same-sex couples.

Tomorrow, his co-counsel will continue with the government's justification under s.1 of the Charter.

John Fisher - EGALE

Read EGALE's summary of day one

Read EGALE's summary of day four