government of Quebec leaked their plan for an RDP, coyly called Civil
Union to Le Devoir ...."
"... the table across from us looked something like a cross between
the Last Supper and the Day of the Living Dead."
(Goldwater) went on to explain that it is impossible to define 'couple'
and exclude homosexual couples, just like the U.S. Supreme Court decision
in Loving said it was impossible to define couples without including mixed
race couples ..."
"If prisoners can marry, why not Rene and Michael?"
"... the right to be a sinner is a social right."
"... denial of access for us would mean that marriage will become
more marginalised, more stigmatised as discriminatory. It will mean that
marriage itself will be seen as a primitive rite, a diminished and dated
"The judge smiled and said that she had no intention of stopping
this hearing over a proposition from the government ..."
In their own words / Dans leurs propres mots
Quebec Day Two - November 9, 2001
As we told you in our early morning bulletin on Friday, the government of Québec "leaked" their plan for an RDP, coyly called "Civil Union", to the Le Devoir on Thursday afternoon so that they could scoop the front page. Interesting to note that they did not share this story with any other newspaper, Le Devoir being the preferred paper for independence-minded intellos.
So Day 2 started in the hall of the 15th floor of the Palais de Justice with the Substitute Attorney General of Québec learning of his master's move on the spot. Needless to say, Bellow (as we call him) was "taken aback"---his written arguments which we have all read say that there is no discrimination in Québec against homo couples. Now here was proof that his own government is pretending to rectify something, if not discrimination!
Bellow, always fast on his hush-puppies, immediate cornered Me Noël Saint-Pierre, who represents the "civil society" coalition, and asked him to join the province in a joint motion to the court to suspend our hearing until the new "civil union" is in place. Noël, according to René who witnessed the scene, snapped back that he was in no position to act on something that did not exist. Apparently, Bellow was "taken aback" a second time by Noël's "lack of co-operation".
Thus, as Day 2 began in courtroom 15,5, the table across from us looked something like a cross between the Last Supper and the Day of the Living Dead. The crowd in the room was reduced to about 15, including a few journalists and John Fisher (Director-General of EGALE Canada).
But we had lots to look at. The two smartypants from the AGC each came with bow ties (looking something like the Bobbsie twins) and, we could not but notice, it was going to be a bad hair day for the whole gang. The lawyer for the religious intervenors had slept badly and it was evident. Although his new hair tonic was holding his veil stuck to his balding crown, there was a lovely fringe over his left ear that refused any external control. But, alas, by noon, the whole sticky mess was on the move. He spent most of the day fighting a losing battle to keep it in place. One detail: the overall colour tone of the opposition was oatmeal, relieved only by the colour of the bow ties.
Me Goldwater started the day with a lengthy explanation of the philosophy of the Charter and explaining Charter activism as demonstrated in Big M Drug Mart and R vs Morgenthaler. René and I knew Morgenthaler as an advance in women's rights and we learned a lot about how the Chartre made that advance possible and what it could mean to gays and lesbians in a marriage battle (that women decide on issues of procreation, not the State, not the Marriage Law).
After this primer, the Judge suddenly asked whether, if she found a violation of the Charter and had to "read in" same sex couples to the Marriage Law, would she then be obliged to grant us a mandamus? The Last Supper gang got really nervous at this point and Goldwater said she would get to that in the remedy section but that she was looking for definitional inclusion and not definitional exclusion of gays and lesbians. She went on to explain that it is impossible to define "couple" and exclude homosexual couples, just like the US Supreme Court decision in Loving said it was impossible to define couples without including mixed race couples, and that Morgenthaler defined human dignity as "choice".
The rest of the morning "wizzed" by as Me Goldwater lead us through M vs H, arriving at the lunch hour on the dot (Me Goldwater has an appetite and apparently shares this quality with the judge).
Meanwhile, the Coalition tried to organise another noon break press conference to counter the political game the PQ is playing. The press conference did not materialise but LeDevoir did their job and sent a reporter to collect our opinions of the Québec "civil union" proposition which would make page A-3 in their Saturday morning edition (the big one here in Montréal).
The afternoon session started with Me Goldwater in an active mood, pointing out how the AGC's argument only used quotes from the dissenters' opinions in M vs H and that the judge should beware of any quotes used by the AGC since most of them were from the losing side's point of view. Bow ties went into advanced wobble state at this point and there was general indignation from the Drone's Club. The audience in the hall was now down to 6 people but them seemed to enjoy all this---for us, it was nice to know that there are other masochists in the world.
Ignoring the Greek chorus on her right, Me Goldwater charged on with the 1987 US Supreme Court decision in Turner vs Safley which, she said, establishes the right to marry as absolute for citizens, even if procreation is not physically possible (the groom was in jail with no visiting rights). She ended this sally with "If prisoners can marry, why not René and Michael?" Bellow shook his head and gestured that Me Goldwater must be mad.
This kind of foolishness just puts fire in the engine for Me Goldwater so she then launched into a discussion of how, in the Civil Code, the rights and obligations concerning parenthood are about "filiation" (relationship), not biology. As she was busy heading off into a discussion of how lesbians used modern reproductive technology to create families, the judge stopped her with an apparent Freudian slip.
The judge interrupted Me Goldwater and asked her to drop the science stuff since it is contentious. Then, out of the blue, she said: "We do not need it because we have lots of convincing material before us". Laughter broke out in the courtroom and the judge quickly corrected herself, saying "that should be enough to convince (susceptible de convaincre)".
Never lost for words, Me Goldwater immediately went back to Morgenthaler arriving at the conclusion that the government's argument that marriage is a prison for women to produce babies is false and is based on the same mentality that opposes homo marriage (" the right to be a sinner is a social right" she waxed at the end). By this time Bellow was "deplugged" as we say in French.
But this was only the beginning of Goldwater's wind up (she had to finish our side's presentation by 4h30). She charged on, pointing out that gays and lesbians are "we" and not "they" as the AGC so often says in his arguments. But the big issue for all of "us" in Québec is the protection of children and the kids of gays and lesbians are the only children in Québec who are not protected by the access to marriage. Then, out of nowhere, Me Goldwater started to read a touching affidavit from a lesbian couple about how their kids are labelled by their parent's non-status as a couple. The Judge, who has vast family law experience, interrupted and said that she knew all of the affidavits well and did not have to hear them again---she had taken careful note of "Dominique's story".
With that, Goldwater rallied her forces and charged into the remedy stating that if we lose, the big loser is marriage. That denial of access for us would mean that marriage will become more marginalised, more stigmatised as discriminatory. It will mean that marriage itself will be seen as a primitive rite, a diminished and dated institution. But, we, on our side, unlike the AGC, AGQ and the religious intervenors, believe in marriage and wish it to "grow and flower". (She forgot to come back to whether the judge should issue a mandamus and the judge, who takes copious notes, did not ask again.). On that positive note, Me Goldwater finished at 4h20. The Drone's Club had been watching the clock for the last hour and seemed relieved, for once.
But their time on the cross was not over!
Me Noël Saint-Pierre asked if he could address the judge. She accepted. He then launched into a description of what had been on the front page of Le Devoir this morning. The judge interrupted and said she had seen the headline (and, no doubt, the flattering 8 X 10 photo of René and me under it) but had avoided reading it, knowing that it would come up somehow during the day---and she had been waiting.)
Noël asked that, if someone should ask that these hearings be recessed because of this news, he requested the right to submit an affidavit explaining all of his struggles for years to get relationship recognition for homosexuals and how the government of Québec had manipulated the gay and lesbian community on this issue.
Bellow was suddenly on his feet saying that this was only a proposed law and that no one planned any political interference in this trial. The bow ties were up, heads shaking and arms waving. From under his now wild hairpiece, Wrapper was trying to say something but words did not come out.
The judge smiled and said that she had no intention of stopping this hearing over a proposition from the government and that she would watch carefully for any references to this project in the two governments' presentations. Court was adjourned on this happy note.
PS: Today's Le Devoir
carries the community reaction to the RDP proposition with the headline:
"Non à l'union civile! Les gays et les lesbiennes veulent
un statut égal à celui des hétérosexuels"
(No to civil union. Gays and lesbians want an equal status to heterosexuals).
M. H and R L in Montréal.