"... the autonomy of one can be the exploitation of the other."
"... the real choice of marrying, or not, is unavailable to us."
"The non-access to marriage for gay and lesbian couples has its effect
on the status of children."
-Coalition for the recognition of gays and lesbians
"In Quebec, the health system applies the law according to medical
ethics which means that the order of priority is married spouse, the family,
interested parties (that's us kiddies)."
"The principles of justice would be violated if married and de facto
couples are treated the same."
-The Catholic Church
"Then the police come in an tell us to leave, it is dangerous."
-Michael Hendricks describing a bomb threat at the trial.
"... the 'religious' right use catastrophic arguments: if the court
changes anything, it will be the end of the world as we know it. It was
the same with divorce in the 1960's."
the Court has stated that no one can impose his/her beliefs on others.
So how can Canada act as if homosexuality (even in marriage) is unacceptable?."
"We have been told that, if the court changes the law, Christians
will stop marrying and Jews will flee."
There is no debate. The minority said that homosexuals should not be recognised
as couples and that the protection of the law is for married couples only.
The majority spoke for the Court.
-Lawyer for Michael Hendricks and Rene LeBoeuf
seems to us that society was opening up to homosexuals and the legislature
moved to block access to marriage in a determined way.
-Lawyer for Michael Hendricks and Rene LeBoeuf
There is no rational connection between supporting heterosexual families
and denying homosexuals the right to marry.
-Lawyer for Michael Hendricks and Rene LeBoeuf
"This is not just asking membership in a club, but in society in
-Lawyer for Michael Hendricks and Rene LeBoeuf
Supposedly there is a tension between charter rights in this case. What
tension, between whom? If we eliminate the homophobes, whose values need
to be protected?
-Lawyer for Michael Hendricks and Rene LeBoeuf
If we believe that marriage is pre-historical, based on Adam and Eve and/or
love, then Micahel and Rene are already married, all they need is a minister
for the service."
-Lawyer for Michael Hendricks and Rene LeBoeuf
their own words / Dans leurs propres mots
Quebec Day Six - November 15, 2001
Next to the last
day. We are exhusted but these Palais de Justice people, the courthouse
regulars, are just full of energy. Since today is for our side, the Drones
Club came soberly dressed and kept a very low profile (except for the
usual lawyerly rolling of eyes, and the exchange of incredulous looks,
when our side said something about their arguments). Wrapper seems to
have shot his wad as it were. Very tranquil, hiding again behind the pile
of AGC bound books. Her Ladyship is her serious but perky self, listening
and noting. Sometimes I think she is a robot.
We seem to be losing
ground as popular entertainment---today we have only nine spectators (including
two journalists) plus John. Two of these lovely people have been here
every day. I honestly do not believe it but they are there, sitting, listening.
Noël is up again,
getting the second part of his half-day. Of course, one half day for Noël
is like a day for anyone else because he speaks so rapidly and jumps around
from subject to subject like a verbal trapeze artist.
Starting out on "2
or 3 themes concerning equity", Noël was soon all over the place,
gaily exposing the AGC's "smart aleck tricks". I will try to
capture at least some of it in point form.
Starting out with
the difference between "union libre" and marriage, Noël
began by explaining that marriage and union libre are considered a choice.
But in reality (Justice Heureux-Dubé in Miron), this most personal
of decisions, which the law has reduced to a contract, is not necessarily
that (example of the dependant woman living in forced union libre). In
other words, the autonomy of one can be the exploitation of the other.
Thus. the need for a social safety net for the "common law spouse".
The Latin legal tradition
does not really have a place for the union libre or the "conjoint
de fait". This notion is more complex than marriage (involuntary
in some cases, while marriage is not; based on co-habitation which marriage
is not, etc.) The supposed free choice and dignity of conjoint status
exists in our community like in the hetero community as we too have cases
of exploitation in this domain (for example in immigration). But the real
choice of marrying, or not, is unavailable to us. Looking at the Glencoe(spelling?)
decision, Bastarche, J defines dignity under the Charter as having equality,
having autonomy in one's personal life and thus in one's choices.
Skipping on to the
famous "effects" of marriage vs the "institution",
Noël explains that, while marriage is federal, much of its juridical
effect is provincial and thus differ from province to province though
there are commonalities (alimony, filiation, patrimoine, etc.). He points
out that the AGC says that homo couples are fully equal in the common
law provinces as far as effects are concerned and then refers the judge
to the Pitfield decision where the actual "effects" available
are listed by province. As any ninny see, not all has been done and, at
the federal level, there are "effects" which have not been "equalised"
yet (immigration, for one---Noël has an immigration practice).
The AGC (the Bobbsies
are squirming in their seats at this point) said all the legal "effects'
of marriage can be accomplished by contract but Noël disagrees, pointing
out that in the Latin tradition, it is not permitted to reproduce marriage
via personal contract. He then describes the limits of a contractual conjugal
regime (we know, we have one and it costs). Noël reads from a decision
to support his view.
Judge: Me Saint-Pierre,
the paragraph before that one is even better!
Noël (ever fast
on his feet): Oh, you are right but I thought that part was already understood!
Noël: M vs H
is clear that contracts are not acceptable for alimony, making the point
that there are limits in the "effects" that are offered to s-s
couples while marriage assures them to all married couples. But g &
l couples get contracts anyway, leaving them more or less covered, and
never sure. For low revenue couples, this protection is not possible.
From there, Noël
jumped into a review of the 6 affidavits presented by the Coalition he
represents (ie. the only other "evidence", other than our own
testimony, that our side is allowed to produce). He points out that they
speak well for the reality of g & l couples. Even better, they cover
points that our testimony can not cover (parenting, inheritance, etc.---things
we haven't lived). Then he focussed in on the children in our lives (both
those coming from previous het relations---the most common--- and babies
born to lesbian couples).
The non-access to
marriage for g & l couples has its effect on the status of the children.
He quotes Justice Heureux-Dubé on the applicability of the UN Convention
on the rights of children as applicable even if it is not a law. The protection
and assistance offered to the children in marriage is far more complete
than that offered by the status of union libre. He goes on to point out
how, in the affidavit of Rabbi Novak, it is said that children succeed
best with married parents and, if this is true, then our children should
also benefit. One of Noël's many cogent examples was that kids from
a marriage have a right to child support from both parents which is not
true if the parents are "conjoints de fait". Also, in situations
of separation, the children's interests are not protected by the State.
In addition, the visiting rights of the non-residential parent after separation
is not assured.
then moved on to HIV/AIDS and its effect, particularly in area of the
conjoint's role in medical consultation/decision making. The "mandate"
we pay lawyers or notaries to write up are never complete, and thus some
citizens end up poorly covered. The Emergency Ward story is fairly common
but, before triple therapy, gay men got to know their limited rights very
well. In Québec, the health system applies the law according to
medical ethics which means that the order of priority is married spouse,
the family, interested parties (that's us, kiddies).
When it comes to
conjugal violence, our community has a problem with the police because
we don't have legal spousal status. Although we in Montréal have
worked with the police on this since 1993, they are slow in recognising
our needs, in fact, our couples.
Then there is the
question of social status and the family. Noël describes our role
in the family (always the bridesmaid, never the bride) All of this is
what we call "dignity". Worse, gays and lesbians are often confronted
with our different status at the worse moments, when we are most vulnerable:
emergencies, separation (esp. with kids), inheritance, conjugal violence.
of the position of the various sides concerning marriage started out with
a simple explanation that g & l couples are more and more common for
reasons of love, sex, assistance, and, of course, child-raising. Some,
like Gonthier, J., try to eliminate any and all access to the "effects
of marriage" for same-sex couples. Noël then pulls out a copy
of the Vatican document on Marriage and Family (1999) and points out what
they have to say about "de facto" couples (of all kinds). Not
Judge: Is this an
authority? (laughter in the courtroom)
Noël: Yes. It
clearly states that a line separates marriage and "union libre"
(either gay or het). He reads: "The principles of justice would be
violated if married and de facto couples are treated the same." This
comes from Canon Law, he explains. For them, non-discrimination against
de facto couples/families is automatically seen as discrimination against
"families" (married couples).
With the door open
on the religious argument, Noël gleefully runs in and points out
to the judge how, yesterday, we heard from Wrapper all about homo "pressure
groups" and gay politics. What this says is that the religious right
sees de facto couples as getting the same privileges without any responsibility.
As Noël branched into a humdinger on human rights, the ALARM BELLS
went off. It is 10h30 on the dot.
The judge, like a
character in Luis Brunel's "La Charme discrète de la bourgeoisie",
tells us to continue, to ignore the fire drill. But the noise is deafening
and the alarm is over Noël's head so he can not hear himself. Then
the police come in and tell us to leave, it is dangerous. 15 floors of
stairs later, we are all out on a balmy November morning in Montréal.
Fortunately, Me Goldwater is not wearing the 5 spike heels she normally
wears when the judge is a man. John Fisher goes off to McDonalds (no apostrophe
in French---Bill 101) to buy coffee for everyone.
An hour later, we
are back in the room and Noël tries to pick up his thread of thought.
(There are still 8 spectators and John, so we only lost one!)
"So the line
is traced in the sand: discrimination is created against marriage by recognition
of the couple "de fait". He then pulls out copies of the definition
of marriage and "conjoint" in various dictionaries from 1943
to 1973 and we can see that the word "conjoint" and "common
law spouse" have changed considerably in that time. Today they mean
a person living with another person conjugally but not married. Our couples
come into the picture, in fact, with law C-23, thanks to M vs H. In Egan,
the Court was still debating whether or not we were "apt" to
be "conjoints". Now we are living in a "conjugal union".
In both Egan and in M vs H, the court says that refusal to recognise that
fact is an attack on our dignity.
So the issue before
this court, says Noël, is that marriage be defined as a voluntary
union between two conjoints (of either sex).
The AGC deals with
the marriage question via a circular argument: it was always like that,
therefore it will always be like that. But, in fact, that circle was broken
in Egan: it is not because in the past, and the circular argument was
accepted, will it always be accepted. (I sneek a peek at the Drones, down
in their chairs, behind the piles of documentation. I pinch René
and we sit up straight.)
Meanwhile, the "religious"
right uses catastrophic arguments: if the court changes anything, it will
be the end of the world as we know it. It was the same with divorce in
the 1960's. And, when it was proposed that sexual orientation be added
to the list of protected groups for hate crimes, the Reform Party said
that would legalise pedophilia. Even the AGC on Day 3 said that, if s-s
marriage were legalised, the door would be open to bigamy and polygamy!
Thus, for article
15, Noël advances the following criteria:
· Stability for the children
· Equality with other couples
· Equality for men and women
· Elimination of polygamy and bigamy.
When it comes to
article 1, Noël says he must first discuss the supposed "conflict
of rights" between the plaintiffs (us) and the faith-community (ie.
the Wrapper). The burden of proof here is not the plaintiffs' but the
government's. Looking at the proof according to the rules set out by the
Court, one wonders. The proof of conflict of rights, according to the
AGC, is that marriage has been historically reserved for hets and gay
marriages would not be recognised internationally. This kind of circular
thinking is not acceptable as proof.
For C-23 (is section
1,1 constitutional?), the AGC and Wrapper agree: the explicit object of
C-23 is to recognise marriage as het. This can not be proven. In fact,
C-23 is a law extending benefits to unmarried couples. Section 1,1 is
an amendment that does not relate to the contents of the law, even for
interpretation since marriage is not mentioned, except in 1,1. What happened
was that some Liberal deputies wanted to close the door forever to same-sex
marriage, so they attached section 1,1 to bill C-23.
As for the issue
that freedom of conscience and multiculturalism require marriage to be
exclusively het, the Court has stated that no one can impose his/her beliefs
on others. So how can Canada act as if homosexuality (even in marriage)
is unacceptable? Of course, the Right goes on to say that if marriage
is granted, then homosexuality will be taught in the schools. Of course,
in Québec, it is already taught (though not very well).
Noël then submits
two affidavits that criticise the "religious" affidavits (the
"proof"), one from an Anglican Bishop and one from an Orthodox
rabbi. Both say that the world will not end for believers if homos get
the right to civil marriage. Surely this will be true of Québec.
We just converted our schools which are supposed to be religion-based
(according to the Constitution of 1867) to laic and everyone agreed---no
religious riots occurred.
We have been told
that, if the court changes the law, Christians will stop marrying and
Jews will flee. In Holland, where there is gay marriage, neither of these
things happened. But there is proof on this question in one of the affidavits
(furnished by the Coalition) that, when the CSN began its work around
equality for homosexuals and then with Law 32, the membership (of whom
few are homosexual) accepted these changes as normal.
Finally (all lawyers
use this word loosely), Noël goes after the AGC about its argument
that the feds did everything in their power to provide equality in its
areas of jurisdiction. This is simply FALSE. And Noël rattles off
a whole list of areas where no change occurred.
To sum up, Noël
tells the judge that it is her job to see that homosexual conjoints have
the same legal and social protections as heterosexual conjoints. And that
section 1,1 of C-23 is a violation of Article 15 and does not meet the
norm of Article 1 (section 1,1 is irrelevant, unnecessary, intentionally
discriminatory). For the same reasons, section 5 of the Harmonisation
Act must also be declared in violation but can be re-written in neutral
terminology. Article 365 should be the same and the court should request
that the National Assembly look into the laws on filiation to assure that
It was lunch break.
Back from lunch,
with 6 spectators and John present, our lawyers got to do the first 90
minute reply session (each party will have 90 minutes with the judge timing
Dubé led off for our side with a discussion of discrimination under
Article 15. Me Dubé said that she had things to say about the divorce
of marriage from its "effects" and about the interpretation
that the AGC gave to 3 decisions: Miron, Egan, and M vs H.
Judge: Before we
start I would like to inform you that there is an article on same sex
marriage in the present edition of the Canadian Bar Review, Vol 80, No.
3, October 2001-Donald G. Cassewell, "Moving toward Same Sex Marriage".
You should know because I will be reading the article.
Me Dubé got
under way by saying that the so-called "separation" of effects
from marriage had to be seen in "context" (finally our turn
to use this word!). In the Ontario cases, like M vs H, the law in question
was already disassociated from marriage (het common law spouses had alimony
rights and M v H extended this principle to same-sex couples). In fact,
the Court never said they could be separated, they said economic interdependence
in same-sex couples could be the same as in het couples. The AGC made
a big deal out of a debate about "detachment" in the Supreme
Court, that the Court decided to give benefits to homosexual couples to
protect marriage. This is not true. (The Bobbsies goes ballistic again.)
The majority in the
Court is the majority. There is no debate. The minority said that homosexuals
should not be recognised as couples and that the protection of the law
is for married couples only. The majority spoke for the Court.
Further, the AGC
says the Court decided to preserve het marriage and give homo couples
common law status. This is not quite true. The question of equal marriage
was never presented to the Court and Cory, J. says that they did not decide
on marriage in order to clarify that this has not been decided because
it wasn't asked.
The AGC says that
the federal government does not have powers over the effects of marriage.
This overlooks divorce which is federal jurisdiction according to the
Constitution. There are, in fact, many places in federal law where marriage
can be found. So the feds can not just "wash their hands of marriage".
Besides, they have a moral obligation to end discrimination against gays
Our side finds that
the AGC seems to ignore the discrimination in the Harmonisation Act. If
René and Michael had gone for a marriage licence in 1992, the clerk
would have been hard put to say no, the version of the marriage rules
in the Civil Code at that time (though not yet approved) was non-sexist.
Further, the AGC is wrong to say the marriage law in Québec was
between a man and a woman since the beginning. It was only codified in
1994. The objective was to plug the existing hole in the Civil Code as
part of the struggle against homosexuality. After the changes in 1969
(decriminalisation) and the inclusion in the Québec Human Rights
Code in 1977, they needed new ways to fight homosexual equality.
The AGC says that
Art 5 in the Harmonisation Act is not in itself discriminatory. To analyse
a law for discrimination, you have to look at the objective of the law.
For article 5, the chronology tells us something: in 1981, the National
Assembly adopted clause 410 (never activated because it was outside Québec's
jurisdiction) that said a marriage was between two consulting persons.
In 1994, this was revised and passed as clause 365 saying that marriage
is between a man and a woman (but it was still outside jurisdiction).
In September 1998, Michael and René filed their first motion. Then
in June 1999, M vs H was decided and in February 2000, the first version
of C-23 (without section 1,1) was presented.
The idea that gay
and lesbian couples could have rights was upsetting to the government,
so they added the intentionally discriminatory section 1,1 to C-23. And
on May 5, 2001, they passed the Harmonisation Act which gives royal assent
to the previously unconstitutional clause 365 of the Civil Code. The global
objective of the Harmonisation Act is not article 5 which covers the constitutionality
of 365. But what is the objective of this article? It seems to us that
society was opening up to homosexuals and the legislature moved to block
access to marriage in a determined way. The Parliament was warned on numerous
occasions and it finally acted in 2001; we hold that this change is connected
to Michael and René. (The Bobbsie twins at this point are lunar,
rolling their eyes, giving Dubé the "insane look".) We
ask you, the judge, to consider these facts as the real history . Article
15 asks you to consider history, not to hide behind it as the AGC suggests.
The AGC asks that
the court recognise a pre-existent reality. But the situation of today
is the result of the past. The problem is that these values were never
clearly identified. The Growing Tree Doctrine tells us that the past plays
a role --- the tree is rooted in the past and the present but is growing
toward the future. There is a philosophy in our legal tradition, we don't
throw out the past, we grow with it. To actualise traditions is important,
to keep them alive is worthwhile and we believe in marriage.
As for the catastrophic
results of including homosexual couples in marriage and the "discrimination"
that would result "marriage": if you say that civil marriage
is laic this does not cause a problem for religious marriage but, if you
say that civil marriage is religious, then there is a serious problem.
Judge: That point
should not direct the judgment.
Me Dubé continues:
Are Michael and René receiving a distinct treatment, are they an
analogue cause as described in the Charter? Yes. Are the objectives or
the effects of the law discriminatory? Yes.
As for the right
to equality: Do Michael and René have equality before the law?
No. Under the law? No. Do they have the equal protection of the law? No.
Do they have equal benefit of the law? No. Therefore, this is discriminatory
With that, Me Dubé
says she will review, in closing, the Leyland case, and she will read
from the dissenting opinion. (After the laughter stopped, Me Dubé
said that the dissenter was the only woman on the court!) She reads: "It
is in the interest of the State to foster all family relationships. To
say that the State should protect only traditional families is discriminatory.
To exclude gays and lesbians from marriage is discriminatory. There is
no rational connection between supporting heterosexual families and denying
homosexuals the right to marry."
It has been said
by the AGC that we have treated marriage as banal in our work here. In
particular, they refer to René's answer to Michael's proposal,
the famous "Pourquoi pas?" This is not to treat marriage, or
the results of this decision, as banal. Looking at the investment of their
time and funds in this fight, the courage that they have shown, there
is no banality. They are taking the great risk of rejection, of being
told, once again, that, no, society does not want you. They are asking
for recognition of their social status and that their dignity be preserved.
Nothing is more concrete.
Your ladyship, when
René and Michael get your judgement, that will be the ultimate
moment of verity. For them, your judgement is the most important. When
Michael proposed and René said "Pourquoi pas", they knowingly
took this major risk together. This is not just asking membership in a
club but in society in general.
During this hearing,
they have heard some unpleasant things. Like the AGC saying that "people
care about marriage", as if René and Michael are not people.
"Pourquoi pas" is a "prise de conscience", a resolution
not to stay in the same place. Because there are dreams to be lived.
Once they had the
judge's complete attention, they put Me Goldwater, the Bette Midler of
divorce lawyers, at the bar. Me G starts off with the burden of proof
is not ours and all the AGC can provide is a lot of conjecture. Everyone
is for the same virtues. Fine, but when did the AGC tell us who will be
hurt, what is the problem, or what is the solution?
So the government
is balancing values in society and the charter. Which values, who has
to be protected, what groups are in competition, what benefits will be
The AGC affirms that
gays and lesbians should have access to benefits and rights, but does
not mention status. And the AGC insists that the government is obliged
to reconcile anti-gays with pro-gays. Who exactly opposes? We know who
the government is not defending. Is the objective to give benefits to
homos and support to homophobes? AGC says the objective is to reconcile
divergent points of view. Ok, whose?
They say they balanced
benefits against a traditional institution. What does "traditional"
mean? If traditional is the multiculturalism that the Wrapper wants, that
opens doors. (The Wrapper and the Bobbsie Twins are becoming annoyed and
cranky and it shows.)
If the discrimination
is intentional, then there is no argument for section 1. But let us look
at this situation. In all charter rights cases, we can identify the stakeholders,
the people or the public at stake. When the persons who are effected have
no identity, how can you determine the compensation? Supposedly there
is a tension between charter rights in this case. What tension, between
whom? If we eliminate the homophobes, whose values need to be protected?
In 1969, Québec
was in the throws of the Quiet Revolution and four things happened:
· Divorce was made available
· Homosexuality was decriminalised
· Abortion became available (though in a controlled and limited
· Civil marriage was legalised.
Judge (out of the
blue): Are there two marriages, Maître?
Goldwater: Yes, one
service, 2 marriages. In fact, I have this for the court. (Me Goldwater
pulls out copies of the "Preliminary Report on the Solemnisation
of Civil Marriage" (1968) prepared for the government by leading
legal scholars of the time.)
The Judge is making
Goldwater reads sections
of the report: marriage will henceforth be civil or religious but with
a choice of officer according to the spouses. Clause 367, protecting the
clergy from charges of discrimination, is explained.
Goldwater: All this
occurred at the same time. This is the context of our case.
So since the AGC
can not identify who and what is to be protected, then there is no test
In the parliamentary
debate on C-23, Svend Robinson asked "Could a member of the government
side explain why gays and lesbians should be excluded from the institution
of marriage which is the effect of section 1,1?' No one answered. This
is a sign of their shame.
Judge: Do not try
to convince me that everyone is agreed.
Goldwater: They have
the right to not agree.
The judge then said
that Me Goldwater's time was up. Bellow chimed in saying she was 20 minutes
over. Me G begged for more time and was allowed five minutes to provide
her comments on the Wrapper's affidavit evidence.
Me G: All religions
think they have the monopoly on truth. But expertise is not speculation.
These people do not "represent" the people who actually identify
with the religions they speak of. It we believe that marriage is pre-historical,
based on Adam and Eve and/or love, then Michael and René are already
married, all they need is a minister for the service.
End of Day 6. Tune
in tomorrow for a vigorous counterattack by the AGC, some meaningless
words from the AGQ, the Wrapper's final rap, and then for the unpredictable
presentation by the Coalition's lawyer. Not to be missed --- and only
a half day!
M. H and R L in Montréal.
Michael and René's account of day 5
Michael and René's account of day 7