legislature was not seeking to give effect to the views of those who oppose
homosexuality ... one can support opposite-sex marriage without being
motivated by hatred towards gays and lesbians.
government is entitled to the most deference when it is balancing diverse
Courts are ill-suited to address such broad-scale reform.
has always been considered heterosexual.
Day Four - November 13, 2020
Me. Pless, for the Attorney General of Canada, provided an overview of the approach to s.1. He referred to La Forest's s.1 analysis in the Egan case as support for the principle that a Court can take into account under s.1 the same set of government objectives advanced under s.15.
He also said that
s.1 can involve a balancing among Charter rights, and a balancing of a
Charter right against the general values of the Charter, including the
accommodation of a wide variety of beliefs. He urged that the Court adopt
a flexible approach to s.1, which leaves the government "room to
In this case, Me.
Pless urged that the objective of s. 1.1 of the
He emphasized that the Legislature was not seeking to give effect to the views of those who oppose homosexuality, but said that one can support opposite-sex marriage without being motivated by hatred towards gays and lesbians.
He said that this was not just his opinion, but was supported by judicial authority (to which Judge Lemelin asked with a smile: "M. Gonthier?") Me. Pless expressed the view that at least four Supreme Court justices had expressed support for opposite-sex marriage, and could not thereby be classified as bigots. He said that the spirit of the Trinity Western decision is that the values of a multicultural society embrace difference, and we are all richer for it.
Judge Lemelin asked how the Court should take account of discriminatory effects. Me. Pless replied that the effects of the means adopted were relevant under the proportionality limb of the analysis.
There is a rational connection between s.1.1 of the Modernization of Benefits and Obligations Act and the government's wish to accommodate diverse beliefs and advance a cultural norm.
The label "minimal impairment" is misleading - it doesn't have to be the "smallest" impairment, but should allow government reasonable flexibility. The government is entitled to the most deference when it is balancing diverse social interests.
Many of the benefits sought or obstacles faced by the Applicants are outside the power of the federal government to address.
Me. Pless referred
to Edwards Books as support for the principle that the government's approach
can be considered proportional if a "serious effort to accommodate"
an excluded group has been made. Here, he claims that the government has
made a serious effort to affirm the rights of lesbians and
In considering the question of remedy, Me. Pless said that Quebec is unique in Canada in that it offers no alternative to the institution of marriage for opposite-sex or same-sex couples. In this case, the appropriate remedy will lie with the province.
The Court should
choose a remedy that respects as much as possible the legislative objective.
Here, the Court can't just extend marriage to same-sex couples, since
this would be clearly inconsistent with the manifest legislative objectives
of preserving the opposite-sex definition of marriage
Furthermore, any change to the definition of marriage would have a large impact on a wide variety of other issues not directly before the Court. The Courts are ill-suited to address such broad-scale reform. Judge Lemelin replied that that might be a reason to suspend any remedy, and on that note the Attorney General of Canada closed their case.
Me. Belleau expressed his agreement with the Attorney General of Canada's position that jurisdiction over marriage is shared between the province and the federal government, with the basic qualifying criteria falling exclusively within federal jurisdiction.
As a result, the definition of marriage is a federal matter. Article 365 of the Quebec Civil Code just reflects the federal norm, but creates nothing in and of itself.
The source of the opposite-sex distinction is art. 5 of Bill S-4, and it makes no sense to consider art. 365 independently - art. 365 cannot be considered discriminatory in and of itself, since it is not the source of any discrimination. The purpose of art. 365 is simply to ensure that celebrants conform with the conditions set out in federal law.
Most marriage laws in Canada have been enacted by the provinces, and the Courts have tended to interpret provincial powers liberally.
Me. Belleau cited the case law suggesting that marriage has always been considered heterosexual, to justify Quebec's position that only a man and woman could marry, even before the enactment of Bill S-4.
By way of example, the provinces have from time to time adopted laws which reflect federal consanguinity requirements, and courts have interpreted these provisions to ensure their validity.
At the close of the
presentation, Me Saint-Pierre asked counsel for the Attorney General of
Quebec whether the province would change art. 365 if the Judge decided
that the federal law was unconstitutional. Me. Belleau replied that he
couldn't give a specific commitment, but added that "the
As a final matter, Me Goldwater challenged the admissibility of some of the religious affidavits.
John Fisher - EGALE