"Last month, our judge wrote to us, asking all the parties in the case to come back to court on March 22, 2002, to discuss the impact of Québec's new civil union proposition on the remedies we requested in the original hearing. Specifically, the judge wanted to know if René and I still wanted to get married.
Michael Hendricks, Montreal

 

 

 

 

 

 


Michael and René's lawyer Me. Goldwater

 

 

 

 

 

"Me. Goldwater (Me. G) starts off by reminding us why we are there and listing the various documents she wants to put on the file: the proposed text for the law, various declarations from the Québec Minister of Justice (official versions) mostly stating that the Province would grant access to marriage for same-sex couples if it were within the jurisdiction of a province but it can't because the jurisdiction is federal."

 

 

 

 

 

 

 

 

"Judge: My pension is coming, we should settle this now."

 

 

 

 

 

 

 

 

Question: Why would you wish to be civilly unioned if you want to marry?

Michael Hendricks: Practical reason, access to new tools in family law. I said I would do the best I can for René and that is the best I can offer him at the moment. At my age, I may never see marriage for same-sex couples.

 

 

 

 

 

 

 

Question: Why would you wish to be married, if you can be civilly unioned?

Michael Hendricks: Marriage is the "gold standard" of relationship recognition and I want our relationship recognised. Plus there are practical advantages: when I retire, we would like to move to the ocean and that means leaving Québec and losing my "union".
Michale Hendricks, Montreal

 

 

 

 

 

 

 

 

 

 

"We are looking for complete recognition, not to have a relationship that is judged as different, we do not want to be 'just gays'."
René Leboeuf, Montreal

 

 

 

 

 

 

 

 

 

"In a free and democratic society, our [Quebec] Attorney General has said we must eliminate discrimination and offers us civil union and a change to the Quebec marriage law (art. 365). This means that civil union is a bandaid, not a solution. As for the Law Commission's recommendation, it states a fact: discrimination must stop ... the same is true for the Canadian Human Rights Commission. These are moral and democratic institutions and we should listen to them because without them the Charter is nothing."
Me. Goldwater, lawyer for Michael and René

 

 

 

 

 

 

 

 

 

 

"The Attorney General of Canada seems to be happy that my clients got the effects of marriage but we want the value of marriage. He wants to give us the contents but not the container and that is because the container is what is important (Me G is in 5th gear by this time). The population is there as we know from the polls. Our societal institutions whose role is reflection are there. I rest my case."
Me. Goldwater, lawyer for Michael and René

 

 

 

 

 

 

 

 

 

 

 

"Along the way, the most interesting things were said about the "weight" in court of the statements of a Minister of Justice. On our side, they weighed a ton. For the Boy's team, they appeared to be the air-head ravings of an election starved politician (they did not say that in those words but they succeeded in communicating it)."
Michael Hendricks, Montreal

 

 

 

 

 

 

 

 

 

 

 

 

"We at least had "our day in court" and we had a vigorous and lively defence. What more can two gays men ask for? As a matter of fact, when we met 29 years ago, such a thing was unthinkable---nothing like this could have ever happened. But it just did. Now for the decision."
Michael Hendricks, Montreal

 

In Their Own Words
Sunmmaries of the Quebec proceedings by Michael Hendricks and René LeBoeuf

Day One - November 8, 2001
Day Two - November 9, 2001
Day Three - November 12, 2001
Day Four - November 13, 2001
Day Five - November 14, 2001
Day Six - November 15, 2001
Day Seven - November 16, 2001

 

In their own words / Dans leurs propres mots

Quebec Day Eight ("The Encore")
March 22, 2002

Day 8 - The Encore (Summary)

As we left off this narrative in November 2001, eating our bowls of Campbell's soup, we agreed that never, never again would we go through an experience like that. The lesson: never say never.

Last month, our judge wrote to us, asking all the parties in the case to come back to court on March 22, 2002, to discuss the impact of Québec's new civil union proposition on the remedies we requested in the original hearing. Specifically, the judge wanted to know if René and I still wanted to get married. This turn of events did not make either of us very happy.

9h03. René and I arrive at the courthouse. The doors to the courtroom are locked and the only other person in the hall is the lawyer for the religious right. With little else to do in this morgue-like atmosphere, I start studying the oppossing lawyer. He's turned out in a grey suit with matching shoes and tie. He even found a new hair tonic that is holding his left-to-right 12" lock in place, tightly stuck to his head, trying to mask his bald pate. But, somehow, he does not seem too happy today, looking a bit like he's been sucking a lemon. I mention this to René who looks carefully and suggests that it looks like his Crispypops didn't go down well.

Then the community starts showing up, mostly lesbians, full of energy and spirit. Next our lawyers, Me. Goldwater and then Me. Dubé, traveling light with only one suitcase of documents. The Bobbsie twins, representing the federal government, then grace us with their bubbling presence. Bobbsie number 1 has got on his yellow bow tie and is clean shaven (for once) though his hair still looks like an unmade bed (he should change barbers, actually); Bobbsie number 2 has new glasses and is particularly smartass- looking today. Next comes the lawyer for the Coalition [representing various groups supporting same-sex marriage], a handsome gay man, and his equally handsome young assistant (who looks straight to me), carrying two big boxes of documentation for distribution (already, this looks like it is going to take more than a morning). Finally, last but not least, Bellow, representing the Québec government, shows. Bellow does not look good-pale, lifeless hair, generally peeked, pasty faced. Somehow I get the impression that Bellow knows this is not going to be his day.

The court door opens and we burst in, filling the room with fag and dyke babble: there are 19 community members in the audience, 12 women, 6 men and one person somewhere in between, at least by costume. Thus the room is about half full and the judge, thank god, will have something to look at (other than the Boy's team and the Girl's team, ie. our side).

A bit late out of the starting gate, our judge shows. Her Ladyship is dressed to the nines, with a beautiful handpainted silk scarf and a "modern" (50s ?) "chunky style" silver necklace. She gets right down to business. We are here to deposit documents in proof and to discuss the impact of the civil union proposition on the original requests.

Me. Goldwater (Me. G) starts off by reminding us why we are there and listing the various documents she wants to put on the file: the proposed text for the law, various declarations from the Québec Minister of Justice (official versions) mostly stating that the Province would grant access to marriage for same-sex couples if it were within the jurisdiction of a province but it can't because the jurisdiction is federal. Me G helpfully informs Her Ladyship that she has highlighted the best parts.

As Me G is about to go on, Bobbsie number 1 is up on his feet, asking the judge if he can argue the worth of these matters based on their value as proof and their pertinence. The judge says he will be able to do that when the submission is complete.

Me G goes on, submitting the text of recommendation 33 of the Law Reform Commission (that same-sex marriage should be legalised). Bobbsie number 1 gets up again to say that this document was published after the original trial and he wishes to react, and, moreover, one can not read a recommendation without the background. Besides the federal government's experts question the quality of this report and he wants the whole thing submitted and "days" to debate its contents.

Judge: But you all agreed to submit this. What is the debate?

Coalition: We have all read it, we didn't write it. What about submitting only the chapter related to the recommendation?

Bobbsie 1: All or nothing (the bow tie is spinning like a propeller at this point).

Judge: My pension is coming, we should settle this now. For the moment this evidence is disputed.

Bobbsie 1: The conclusion is not enough, but if the whole report is accepted we have the right to respond.

Me G: There are two ways to see it. It can be "authority" or "doctrine" --- it is a public document. Our argument is not to question the Commission's competence. We see this as an indication of life in 2001 and this recommendation says that non-access to marriage is discrimination but the Commission's opinion does not bind us.

Judge: It is not that important, not really proof. This is authority, a collective work.

Me G: It is simply an indication, it does not tell the court what to do. I am establishing the "fact" of the recommendation. And here is the last one, an extract from the Canadian Human Rights Commission's annual report, dated 21 March 2002, which supports the Law Commission's recommendation.

Bobbsie 1: This places us in a difficult position---we can't debate the report but the recommendations are being submitted.

Judge: This has got to stop.

Bobbsie 1: The Coalition lawyer is producing a huge document --- where does it stop?

Me G: Only the last piece was not discussed in the pre-trial meeting.

Judge: Normally, I do not read these things when they come to me but they must be presented to be read.

Bobbsie 1: If you accept them, we want to debate.

Coalition lawyer: Now it is my turn to be stoned (in the Biblical sense, he means). Because of the short time today (30 minutes per lawyer), I produced my arguments in written form. Plus there are annexes for references where I cite documents. What is new is a document from Holland on what happened after same-sex marriage was legislated.

Judge: This is not related to new developments in Canada.

Coal: Yes, yes, but if you exclude ...

Judge: No, I won't read it. You have not informed your peers and you had a month to do it. But what about the report from the Québec Bar on civil union?

Bobbsie 1: It is not the contents that is the problem but we want to debate it, not just submit.

Judge: You attorneys-general must have time to review and comment on these documents.

Bobbsie 1: We want to respond in writing.

Judge: It looks like we will go over into the afternoon. I do not think it useful for the court to read all the position papers---proof in Ontario is not proof here. I must be convinced that the proof you submit is ok, I am not shopping for information.

Bobbsie 1: Lots of things are presented in Parlimentary Commissions and we gave you the entire collection for the hearings on C-23.

Judge: But do not say that this material is not important but extracts are incomplete. Me G, do you have other proofs?

Me G: Only the testimony of my clients.

Bobbsie 1: What? We have a problem. You (speaking to the judge) opened for documents and arguments, not to hear them.

Judge: Communication is never perfect. (She reads them her notes from the pre-hearing conference where it was discussed that the plaintiffs will testify.)

Bobbsie 1: We consider this a change in the debate. Civil union changes nothing. Me. G is trying to change their proof. "Fairness" requires an objection.

Judge: Objection is your right.

Bobbsie 1: We are not prepared for cross questioning. Why are we making these proofs? What is Me. G trying to do? We do not object to proof but we need to look at these documents.

Judge: I do no share you conclusions.

Me G calls me as a witness and asks 5 questions:

1, Are you aware of the proposed civil union proposal?

Me: Yes

2, Do you still wish to be legally married?

Me: Yes

3, If the civil union bill passes, will you also be "civilly unioned?" Me: Yes

4, Why would you wish to be civilly unioned if you want to marry?

Me: Practical reason, access to new tools in family law. I said I would do the best I can for René and that is the best I can offer him at the moment. At my age, I may never see marriage for same sex couples.

5, Why would you wish to be married, if you can be civilly unioned?

Me: Marriage is the "gold standard" of relationship recognition and I want our relationship recognised. Plus there are practical advantages: when I retire, we would like to move to the ocean and that means leaving Québec and losing my "union".

Then René got up and got the same questions.

The first three he answered yes.

4, If you union why do you want to marry?

René: We are looking for complete recognition, not to have a relationship that is judged as different, we do not want to be "just gays".

And question 5 was similar, with René finishing on us wanting to be full citizens of Canada.

Judge: Does the AGC wish to cross question?

Bobbsie 1: I wish to reserve my decision, no questions for the moment.

Me G: There is the proof, oral and written.

Bobbsie 1: We wish to argue the basis of the Minister's comments as proof.

Me G (ignoring the Bobbsie): Concerning the testimony, it is there to prove the pertinence of this trial. As Mr LeBoeuf says "Why a separate category for gays and lesbians?" As for the written proof, we sent copies in January to the other parties. We want to stop the AGC's attempts to enlarge the debate. In Quebec, we had the longest trial and then the civil union came along so it was not discussed in our hearing. We finished our proof then and we have to re-open to look at this project and its impact. Now everyone has a right to speak on the issues. And, for these reasons, we made today's submissions. There are no surprises here.

What this all shows is that one of our adversaries is moving towards our position. I have asked Me Belleau (lawyer representing Québec) to join us but he doesn't want to. Essentially, what the Minister of Justice of Québec has done with civil union is take what he can get, just like my client, Mr. Hendricks. The question of the effects of marriage is settled but we did not only argue that the effects of marriage make marriage necessary for us. We also said choice was important, that choice measures belonging to society. We are greatly relieved that Me Belleau has given us the effects. The Minister also said he would change article 365 which is one of our requests from the court.

(Me Belleau is busy taking lots of notes but never looks at Me G.)

Me G goes on: In Minister Bégin's closing comments on civil union he says the responsibility to change marriage is now the federal government's. What brought Bégin to this position? It is not important. In a free and democratic society, our Attorney General has said we must eliminate discrimination and offers us civil union and a change to the Quebec marriage law (art. 365). This means that civil union is a bandaid, not a solution. As for the Law Commission's recommendation, it states a fact: discrimination must stop, how they got there is not important. The same is true for the Canadian Human Rights Commission. These are moral and democratic institutions and we should listen to them because without them the Charter is nothing.

These recommendations are persuasive for the court. That is why they are important. This is how same-sex couples are seen by a free and democratic society. The AGC seems to be happy that my clients got the effects of marriage but we want the value of marriage. He wants to give us the contents but not the container and that is because the container is what is important (Me G is in 5th gear by this time). The population is there as we know from the polls. Our societal institutions whose role is reflection are there. I rest my case.

Judge: Does any of this effect the remedies you seek?

Me G: Yes, the delays. We accepted a 6 months delay, now we may not need this as civil union will resolve the legal texts. All that remains is a few minor changes at the federal level. So up to 30 days may be needed.

11h00, the judge calls a break.

And so the morning went on with the AGC and AGQ saying that Me Goldwater's submissions were either meaningless, incomplete, or required serious study. Me G was having none of this.

The judge was growing weary of the squabbling and appeared to be apprehensive about ever getting to the end of this case.

The lawyer for the Coalition got his 30 minutes at the end and the judge was in no mood for additional text submission, except that she seemed to want the Québec Bar report that says that civil union may, in fact, overstep the constitutional limits of provincial power. So she picked through his heterogeneous collection of "proofs" and got him to eliminate a few, leaving the rest for further comment from all parties.

Along the way, the most interesting things were said about the "weight" in court of the statements of a Minister of Justice. On our side, they weighed a ton. For the Boy's team, they appeared to be the air-head ravings of an election starved politician (they did not say that in those words but they succeeded in communicating it).

At one point, the lawyer for the Coalition tried to slip in the American Pediatrics Association report on the well being of children raised by same sex couples. The judge remarked that there had been no evidence about the health of children given in this court. The only question of health was religious health. (Laughter.)

Towards the end of the hearing the judge remarked that, contrary to what the Attorney General ofCanada and Attorney General of Quebec were saying, what Me Goldwater submitted may not be proof but it is pertinent. Suddenly, everyone agreed with her. (The power of the judiciary to convince is amazing.)

In the end, the judge gave the AGs until April 12th to comment on the submissions from our side and until April 19 for us to respond. Me Goldwater said we will not respond and the whole Boys Team broke up in laughter.

For René and I, we hope this is our last day in court. It is a tedious experience for the non-judiciary types (like us). And, while it may be the most impressive product of our free society, it surely isn't fun. But, we had to admit, we at least had "our day in court" and we had a vigorous and lively defence.

What more can two gays men ask for? As a matter of fact, when we met 29 years ago, such a thing was unthinkable---nothing like this could have ever happened. But it just did.

Now for the decision.


Michael Hendricks, Montréal.