In
their own words / Dans leurs propres mots
Quebec Day Seven - November 16, 2020
Completely fried,
dragging our feet, René and I arrive at the Courthouse at 9h05
for last day of hearings. With luck, the final session will be over by
noon. Surprise, Me Goldwater is already in the courtroom, bubbling over
with energy, ready to go.
The last session
is not very well attended, only 4 people. Claude #1, who has been here
everyday (the other person who made 6 out of 7 days is also named Claude,
Claude #2), comes up to me and says: "Bette Midler (Me Goldwater)
nailed them with her document on the meaning of civil marriage. I laughed
all night." Reassuring as it is that others are announcing our victory,
René and I are not the kind to be sure of anything.
The day starts with
Bobbsie Twin #1 going up to the bar and saying his presentation will be
short (like "finally" this word seems to mean nothing to lawyers).
Our side is bubbling over by now because we know that, for us it is over,
Goldwater and Dubé have laid out a solid argument with enough proof
and we have the basis for an appeal. Our joviality is met with frozen
stares from the Drones.
We settle down as
Bobbsie tell us that he and Me Goldwater have "agreed to disagree".
The AGC's thesis is that there are values to be protected here. Me G asks
what values. The institution of marriage represents something for certain.
This court is not an Inquisition (strange choice of word, I think) and
no one has to declare how he/she feels on this issue. But there are at
least four Supreme Court judges who agree with us. And the others respect
values. Me Saint-Pierre explained it well: to believe in marriage is not
homophobia (not exactly what Noël said, but . . .). Times have changed
and the Supreme Court has separated the "saftey net" from marriage
and offered it to others but it still recognises the institution. The
federal government has acted on the decisions of the SC and even went
further; law C-23 goes beyond the ruling in M vs H. Except for the bankruptcy
act and immigration, same sex couples are recognised, the "saftey
net" for married couples has been modified to include them (lists
them off: some of this is not true!)
Parliament has balanced
divergent interests and there are many ways of doing this. Parliament
does this kind of "social engineering", not the courts. Besides,
there are elections and if you do not like what the members of Parliament
do, you can change them!
Judge: Not judges!
(laughter from all sides, the judge is laughing too)
Bobbsie: C-23 was
presented originally without section 1,1. The debates convinced the government
to add section 1,1 as a reminder of what their intention was, their motivation.
It was a compromise.
Judge: Section 1,1
appears to be a guide for interpretation but how does it effect the law?
As far as I can see, if effects nothing.
Bobbsie: There is
no other reason than a reminder, a way to interpret the whole text, an
answer to those who thought C-23 could be misinterpreted. Lots of people,
including judges, thought marriage and its effects could not be separated
but C-23 is the proof that they can be.
Bobbsie then began
to read to the judge the Parliamentary debate around C-23. Stopping the
reading, he said there was also much consultation and a registry for same-sex
couples was suggested. However, the Coalition objected on the grounds
that they wanted to preserve confidentiality. In fact, Me Saint-Pierre
represents this pole of thought.
Judge: Section 1,1
is strange. To what does it apply?
Bobbsie: It proves
that the majority wanted to be clear about marriage when making this change.
In Québec, the same thing was accomplished with the Harmonisation
Act, section 5.
Judge: We received
a text on the Harmonisation Act that tells us that section 5 supports
clause 365.
Bobbsie: The importance
is the context, the debate. The burden is to recognise values and conciliation.
Bobbsie: I would
like to comment on the Canadian Bar Review article that you mentioned.
I question the author in his use of sources: Ann Robinson and Wintamute
were banned from this trial and here he talks about these "proofs".
Moreover, our point of view is not there. It is this a coincidence? Drôle!
We do not need those affidavits, it is all there in values. I give the
author a low mark for his analysis.
In ending, I would
like to thank you for your patience.
Judge: It was easy.
You are good lawyers and the subject is interesting.
Bellow (AGQ) then
stepped up for his 90 minutes.
Bellow starts by
saying he does not have much to say. (Thank god)
The Harmonisation
Act means integration of civil law with Canadian law. The norm for marriage
is federal and we see the reflection of clause 365 in section 5. This
is not discrimination, it is a reflection of something elsewhere. If there
are questions about the validity of separation of effects of marriage
from marriage, see M vs H. It is all there.
As for your decision:
in M vs H, the decision was suspended for 6 months. In this case, 1 year
would be better.
Bobbsie #1 jumps
in and agrees that a year is needed.
Also, a copy of the
"avant projet de loi" (Québec's civil union proposal)
will be sent to the media soon and you will see it. It will be pertinent
for your decision.
Noël stands
up: If it goes to the judge, the parties should have a copy for written
comments.
Bellow: The object
is not to debate this here. We can not modify clause 365, marriage is
not our jurisdiction. We do not have to create a debate.
Me Goldwater: The
judge said it was important not to get information by other sources. If
it is not here before us, it is not pertinent. If it is, then we should
be able to criticise it. Is this your "solution de rechange"?
If so, let's see it. All that said, you can not leave it nebulous like
that.
Judge: I understand
your pre-occupation. I have a specific question before me. If you say
that clause 365 is not to be changed, this is to be challenged. This (projet
de loi) will not respond to the motion before me. That is the question
is asked. So what if another form is proposed?
Bobbsie (trying to
regain control): It could be another possible solution.
Judge: I should be
able to answer the question of discrimination. So what if someone builds
another golf course?
Noël (joking):
We will have to re-do this trial once again in 6 months or a year!
The Wrapper steps
up to the bar. (Wrap has been keeping low all morning and this is the
first time I see him well. There was a surfer film in the 60s called "The
Perfect Wave" where a handsome boy with a board went from beach to
beach looking for the perfect surf. Today, the Wrapper's "cover up"
for his bald spot has managed to configure itself into a small model of
the dream wave, with the cusp and the tunnel---impeccable.)
Wrapper then repeats
everything he said Wednesday but in a shorter version. There is little
new here but I will note what was new.
Marriage is a beneficial
institution that has served society well (blah, blah). What is proposed
here could be heavy with consequences (blah, blah). There is a difference
in dimension between abortion and marriage (Me G had brought up the similarity
for right wing religious people and the judge also had mentioned this).
Abortion was decriminalisation while here we are trying to impose on society,
and on believers, a new institution that is fundamentally contrary to
faith.
Me. G says over and
over that we are in a secular society. No, we live in a society that is
open, that guarantees faith. Goldwater says we impose our beliefs on others.
No, her clients are doing that! They say the basis of marriage is love
(or sex) but this is opposed to the basis of marriage. If this court says
yes to them, that will be an attack on the freedom of religion (Wrapper
just guaranteed himself a spot in the Appeal).
Yesterday, Goldwater
read to us about the solemnisation of civil marriage. I read that text
last night and there are not two marriages in Québec! Civil marriage
is an enlargement of the true institution, not a new institution. There
is only 1 marriage in Québec. If you give them what they want,
then there will be 1 marriage but it will be fundamentally different.
Me G's clients are
imposing not their homosexuality on others but their ideology.
Me Saint-Pierre says
his clients want choice. If you grant it, then you take away a choice
from my clients.
(Judge is not looking
too happy at this point.)
Wrapper: Read Rabbi
Novak. Maybe the Jews will leave but the real problem is freedom of religion.
When Saint-Pierre says there were no riots after the laïcisation
of the school, that is because it was not an attack on freedom of religion
and "no riots" is not an acceptable answer.
Wrapper goes on to
present himself as the saviour of a society that is on its way to hell
if homos get to marry, etc. Then he attacks Noël's evidence on the
laicisation of schools and what not. With that, Rapper wrapped up.
Judge: I did not
like the testimony you presented concerning Jews moving away because of
a change in marriage. We would need proof from demographers, not conjecture
or opinion. Certain accusations in your affidavits distance themselves
from tolerance and this does not help the intelligence of your argument.
Noël went to
the bar to finish the trial.
Starting off, Noël
presented the judge and the other lawyers with an article by a Professor
from Queen's University, Nick Bala and then reads from Bala's testimony
somewhere (at Parliament, I think). Bala says that C-23 addresses the
legal challenge of M vs H but does not recognise the need for a kind of
marriage for same-sex couples, like Vermont's civil union.
Noël goes on
about how this is a lame solution, not in federal jurisdiction, if not
marriage, what then? He explains the difference between registered domestic
partnerships (RDPs) and marriage and then says that there is maybe another
possibility, maybe a register for couples with no children or a PACS (the
French RDP) which is open to heterosexuals. The point that Bala is making,
says Noël, is that Parliament has to take its responsibilities.
NB: At this point,
I have to go to the toilette, so a part of the discussion is missing.
Sorry!)
When I get to my
seat, Noël is saying that C-23 had nothing to do with marriage, section
1,1 was simply added to assure certain deputies.
Then Noël is
off again: In 1993, at the Human Rights Commission's hearings, I was against
marriage as it was not the need at the time (there were more pressing
needs). I proposed a register to resolve this problem at that time, as
a way of responding to the people calling for same-sex marriage (mostly
Ann Robinson in 1993).
Since then, my work
with women immigrants has taught me about the importance of marriage.
Today, society and the community have evolved to change its view on this
question. Essentially, there is an institution that exists, the effects
are clear. The best way to resolve our problems is that one. PACS do not
work for homosexuals, etc, etc., etc.
In terminating, Noël
says:
What is the proof
that was made showing that section 1,1 balances values? Everyone says
that C-23 has nothing to do with marriage, so what is section 1,1 doing
there? That is to say that the rights of gays and lesbians are as weighty
as something that was never proven.
Judge: Thank you
all, the debate between the parties was very sincere.
Me G jumps up and
says that she has marked pertinent parts of the Parliamentary debate over
C-23 and would her Ladyship like to have those now?
Judge: You just want
to have the last word? (she laughs). Me G laughs, nods her head, and says
she will send them by letter, with copies to the others.
There were four journalists
waiting for us as we left the courtroom and so we "gave head"
for the last time. Me Dubé was full of energy and spoke willingly
and at length with Le Devoir (rare for Me Dubé) while Me Goldwater
did the student papers.
As we were entering
the elevator, Me Dubé said to me: "What was the point of the
federal government's year long delay so they could do research and gather
affidavits and proofs from "experts" except to have time to
pass the Harmonisation Act?" I felt like I had been hit by a bolt
of lightening. So that was it! What kind of people are we dealing with
?
As we stood in the
parking lot, having packed Goldwater, Dubé's 4 suitcases full of
documents into the car, I suddenly realised what a racing greyhound feels
like when the mechanical rabbit disappears at the end of the race. We
said our good-byes, gave lots of cheek kisses, and René and I trudged
off home to a bowl of Campbell's Chicken Noodle Soup.
"Soyons réalistes,
exigeons l'impossible." /
" Be reasonable, demand the impossible "
Che Guevara
M. H and R L in Montréal.
Read
Michael and René's account of day 6
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