In
their own words / Dans leurs propres mots
Quebec Day Four - November 13, 2020
You have to wonder
if these people call each other in the morning to check what to wear,
like school kids! Today, the dress code is sober blue on their side (all
of them) tho' Bobbsie 1 is sporting his bow tie again (his day at the
bar has been).
We are all here,
the Drones, the Girls, the Judge and her entourage, and 8 citizens, one
of whom is John Fisher who really does not count because he loves to sit
in court rooms (apparently). I award the one poor soul who has come every
day so far with the Male Masochist Medal of 2001 and suggest that if he
makes it to the end with us, he should enter the Gay Games in the boredom
trials.
We got down to work
on time, as Bobbsie 2, a bright young man who wears Robert Bourrassa style
black rimmed glasses, taking them off to make "serious points",
stepped up to the bar, announcing that he would do the Section 1 arguments.
(They put their brightest star on our most vulnerable spot!).
But the judge cut
him off with a question: When you spoke of the Harmonisation Act yesterday,
if I find it "ultra vires" (unconstitutional) should I strike
the whole act or just the section discussed (ie. the part about marriage
being between a man and woman in Québec)?
Opps, the twinkle
left the star: We will cover that later. (Nerves)
B 2 then went off
on his pitch (in English to my surprise). As Noël said: This guy
talks slower than I type. And it was true. With a voice that carries,
he slowly, very slowly, with long halts and pauses, talked for 3+ hours.
Almost like a school
teacher, he lectured the judge on how she should approach her charter
analysis, citing dissent opinions again, but this time about how to validate
a law even if it is discriminatory under article 15 (is he conceding already?).
So, if you have a "set of concerns" which could equal discrimination
under article 15, it can be justified under article 1 using the "reasonable
person" test.
The AGC says a reasonable
person would see the institution of marriage and the justifications (for
the discrimination) of the government of Canada and would not feel diminished!
If the court thinks that reasonable people could feel diminished by the
law, we ask you to consider the justifying qualities of the government's
objective. (He said all this, not me.)
The first step in
a Section 1 analysis is balancing among the charter's rights and the values
embedded in the charter. (Cites Dickson, CJ in Oakes.)
Now, Law C-23 must
be looked at in the "context" of Canadian society and then you
will see how the government has tried to balance all the elements! Once
you have balanced the rights, then look at the objective and ask if it
balances individual rights with larger values.
In this case, you
(the judge he means) have to ask how groups in society view marriage.
You need a "holistic" view and you must understand that the
government is trying to reconcile values in society. But, he natters on,
the court must resist the urge to legislate because the gov't must have
options to manoeuvre to accommodate different social values. Cites M v
H.
In Québec,
the provincial govt has made efforts to recognise other family forms as
C-23 does not touch the laws in Québec (oh, yeah, you little twit,
like what?).
But for the rest of Canada, C-23 accorded all the benefits that were historically
denied to gay and lesbian couples (this is a bald lie). So C-23 has given
all that to gay and lesbian couples and there is one other article in
it, section 1,1 (marriage is between a man and woman to the exclusion
of all others---us, that is). Section 1,1 is there because C-23 has an
objective!
When Judge Gonthier,
in his dissent, said the effects of marriage is marriage, the court said
no---you can respect marriage and give these effects via another route.
NB: on the side of
my notes, I have scribbled at this point: "B2 is twisted and perverted'---he
was already getting to me.
As a judge, you must
address section 1,1 which is there because the govt of Canada tired to
balance the diversity of values in Canadian society and the charter itself!
Now, let's look at
law S-4 (the Harmonisation Act), he prattles, and we will see that it's
principle purpose is to clarify a historical situation, and was adopted
for the same reason as C-23. (Québec was ordered by the courts
to grant some kind of recognition to g & l couples, so they gave the
very rock bottom minimum in 1999. S-4 was passed in May 2001 and its only
reference to us is royal assent for the heterosexist definition of marriage
in Québec.)
We all know why it
is important to give the effects of marriage to same sex couples and it
may seem hard to understand why the govt continues to recognise marriage
as an opposite sex institution. And, maybe, my lady, you will see new
ways to grant the effects of marriage. But there remains a "shell
of marriage" which has a cultural significance for some Canadians.
The reason that our govt has done that is because the govt is reconciling
those who support homosexuals with those who oppose! I can assure you
that the govt of Canada does not share this opposition to homosexuals
and this is part of its balancing.
Yesterday, Me Saint-Pierre
made reference to the challenge of freedom of conscience and how homophobes
object to homosexuality being taught in the schools. The govt of Canada
does not support hiding homosexuals! Educating kids may be a reason for
gay marriage but this is not the business of the courts. When the court
examines under-inclusion of social groups, it must look at the purpose
of their omission.
"The objective
here is not to deny gay and lesbian couples the benefits of marriage but
to give them those benefits and to try to respect differences."
I go ballistic and
start to make small animal noises, like pig sounds, as much as that is
possible in front of Her Ladyship, and Noël writes on my note pad:
"Pretend you are polite, even with rats. This is a test for tomorrow"
(referring to the religious presentations).
And so the morning
wound on.
"Now all those
who oppose are not motivated by hatred." "If we say that all
citizens who believe in het marriage are homophobic, then four justices
on the Supreme Court are homophobes."
You can see the same
balancing in the Trinity College decision. The Court asked if the values
of multiculturalism were worth giving space to views that are not generally
accepted, like with freedom of speech. In Trinity College, there is hate
of gays and lesbians but, in this case, no.
The judge intervened
asking if, in Trinity, the objections were not only about homophobia.
Yes, but the Court looked at that aspect because of the historical damage
to the gay and lesbian community. (Me Goldwater chimes in that, at Trinity
College, they banned gluttony too. NB: We have known Me G for 2 years
and she has been on a diet for the whole time.)
The judge: What are
you trying to tell me to do?
Twit: We presume
that you will find discrimination but, under section 1, is the objective
of the government of Canada permissible? Is the government permitted to
have objectives?
Judge: Does this
exclude the objective from consideration?
Oh, la, la. Saved
by the 11 o'clock break.
Back from break,
the twit goes on about the rational connection between the discrimination
in C-23 and the objective of the government. This, we are informed, is
established by "common sense" and logic! There are 2 goals in
C-23, that marriage be recognised and that benefits are accorded. C-23
advances diversity and reflects the values of "different Canadians".
But the "context"
in Québec has to be looked at! (I will vomit if I hear the word
"context" again.) This analysis may be complicated because a
great deal of the testimony (René and me and the affidavits, the
majority from lesbians) deals with effects that are outside federal control
(though if we could marry they would be ours automatically, n'est pas?)
If this work has
not been sufficiently done in Québec, it is important that your
(the judge's) reasons and remedy reflect this (in other words, don't give
the locals marriage because the problem is solved in the other provinces
so marriage not needed).
C-23 is a shining
example of proportionality in using the charter. The govt has chosen among
the least intrusive reasonable means to give benefits and maintain the
objective of het marriage---this is proportional.
But now we have to
talk remedy.
After endless blabbing,
which I will spare you (dear readers, you have surely had enough, no?
), Bobbsie 2 let off with this one:
The court can not
"read-in" gays and lesbians into marriage because it is clearly
inconsistent with marriage as a heterosexual institution and with reconciling
divergent values!
The Judge: Why the
second one?
C-23 has the ban
on gay marriage for that very purpose, reconciling divergent values! It
is not random---it answers Judge Gonthier (dissent in M v H), it gives
rights and respects marriage. (Is this circular reasoning? Or is this
circular reasoning.)
Bobbsie 2 then launched
into the things the judge may not do in choosing a remedy if she finds
C-23 violates the charter. Among others, the remedy must do more than
just make the law justifiable or eliminate discrimination because it must
do nothing else! He then gives an example: In the affidavits, the relationship
of the lesbian couples' children to the non-biological mothers is brought
up. Getting them married would solve the problem but what would it do
to heterosexual mothers?
"Reason alone"
suggests a remedy of inclusion will impact lots of laws without resolving
the real problems. (barf)
On that note, he
was done and slipped into his seat. It is lunch break. I need a cigarette,
actually something else, but this is the Palais de Justice, crawling with
cops.
After lunch, Bellow
steps up to the bar. René and I first met Bellow in January 99
with our first motion. At the time, he ordered us to drop this ridiculous
suit, we did not have a chance of winning and were bothering everyone.
We have grown to love Bellow's shifty eyes and oatmeal skin colour. Blue
blazers are not really for him but he's wearing one today. Incidentally,
we stopped speaking to him or even seeing him at least a year ago. John
Fisher talks to these people, we look through them and, if they speak
to us, we point to Me G or Me D without a word.
Bellow is not a big
draw, we are down to John and the Masochist plus 3 others, one a journalist.
Bellow, feigning charm, says that today will be a demonstration of Canadian
unity, the feds and Québec finally agree on something. Guess what
unites them?
Bellow starts off
by saying that this will be short. A momentary relief that turns out to
be another lie. Bellow explains the sharing of jurisdiction in marriage
through the Constitution of 1867 (Québec does not recognise the
1982 Constitution). You all know the story: feds have the "fonde"
(the requirements), the provinces have the form (the ceremony).
The Québec
marriage law (Article 365 of the Civil Code) says that marriage is between
a man and a woman but this is only a reflection of the federal law. The
Quebec law reflects or translates the federal norm for the benefit of
the person celebrating the marriage (ie, within the jurisdiction of Québec).
So why would the court examine the Québec law (as the plaintiffs
request)?
The source of this
federal norm is law S-4, the Harmonisation Act. (I am still trying to
figure this one out: the Québec marriage law was passed in 1994
and the Harmonisation Act, in 2001 but it is the source!)
So, Votre Honoure,
you can not find that the Québec marriage law violates either or
any charter or anything because it is all the fault of Ottawa! And to
strike the Québec law you will have to strike C-23, section 1,1,
and the Harmonisation Act, section 5!
The Québec
marriage law is not in itself discriminatory because it is not the origin
of the problem. (my, my, what a clever defense!)
But the Harmonisation
Law must be seen (guess what?) in its context! Harmonisation abrogated
all previous Québec laws that were actually in federal jurisdiction
(ultra vires, not constitutional) and then brought them all back with
royal assent so they are now Canadian laws! That section 5, which says
the stuff about marriage is for boys and girls, is unique and is only
for Québec is not a problem. Anyway, Ottawa did it and the Assemblée
Nationale can do nothing to correct its own law because it can not legislate
in federal jurisdiction (so who passed the law in 1994?)
And the new "Civil
union" law in Québec can not abrogate 365 either. (Why? Because
the National Assembly can not legislate in the federal govt's jurisdiction!)
And, since 365 is
not the source of discrimination, you can not even look at it. "Enfin,
la parfait harmonie entre Canada et Québec" bellows Bellow
with a certain tired panache.
He then goes on to
attack Me Goldwater's interpretation of how the Harmonisation Act became
the source of 365. Not true, not true, not true. (As Me G had pointed
out on Day 1, the original Harmonisation Act did not have the heterosexist
definition of marriage but the last version that was voted on did. Of
course, in between the two versions, we filed suit.)
Finally, Bellow finishes
by saying that he could not figure out what our complaint was about since
365 is not subject to the Québec Human Rights Charter because Québec
is not the source and it is not discriminatory under the Canadian charter
because the federal government made them do it!
Bellow then slithers
off to sit next to the Wrapper who has spent the day hiding behind a pile
of papers and playing with his hairdo. My glazed-over gaze falls on him
and it suddenly dawns on me that this chap has missed his calling ---
he could have had a career in John Water's films.
But Noël pops
up with a question: If the Harmonisation Act is unconstitutional, will
365 be withdrawn? Bellow whines: I have no mandate to discuss this issue.
Me G is on her feet
--- it is only 3h40 and the judge does not like to waste time or quit
early. I am dying to get home to Oscar by this point (Oscar is the dog,
René is at work).
Me G says that she
would like to discuss eliminating some of the expert opinion on religion
since it is not pertinent, exceeds its mandate, or has no one in court
to represent it except the Wrapper.
How can the Wrapper
represent the Montréal Jewish community, Islam? According to his
motion, he represents the Alliance of Francophone Evangelic Protestants
and the Catholic League (Opus Dei) but not them.
Me G: we understand
that the Wrapper is here to represent religions, to assure that same sex
marriage is not imposed on faith groups that think it an abomination but
his expertise is full of "sociological" comments that have nothing
to do with religion.
She offers a compromise:
Let's look at the Canon Law sections that apply and the Vatican's ditherings
on marriage and family which she found on the internet.
Wrapper: Never.
The Judge: Do you
question their expertise? You can contest tomorrow when Wrapper raps.
Morbid to the core,
Me G says she will accept the expertise by the man named "Gay"
but not the rest.
Judge: Once they
are submitted, you can argue them, complain about them and how they are
used and the weight they should be given. But they must be submitted.
So tomorrow, Me G
will be on the warpath. And Wrapper, on stage. Show time is 9h30. Knowing
Noël for many years, I am sure this will be a day to remember. (Poor
Wrapper.)
Stay tuned.
M. H and R L in Montréal.
Read
Michael and René's account of day 3
Read
Michael and René's account of day 5
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