Legal Canada - Cotler's contortions questioned by court

October 6, 2004 (updated Oct. 7)

Cotler's contortions questioned by court
Justice Minister abuses legal process for politics

"This is a political process," Bourassa said yesterday. "The federal government is using the Supreme Court of Canada as a tool to bolster their courage and political will to do what they should do anyway."
T.O. pair fights for all gays, The Toronto Sun, Oct. 7, 2004

This morning’s submissions to the Supreme Court of Canada did not add any new legal arguments to the case for equal marriage and that is not surprising. After four years of lobbying, advocacy and successful challenges in 6 of Canada’s 13 jurisdictions, there has to be little new to be said on either side of the marriage debate. True, it was heartening to experience the novelty of finally having the Attorney General of Canada argue for equal treatment of LGBT couples, but the substance of the arguments remains unchanged and the reality of marriage equality for 100% of Canadians (enforceable for only 82% at the moment) will remain the law of the land. After all, as Justice MacPherson observed during the deliberations in Ontario court – “When you win, you win.”

The truly refreshing facet of the day’s proceedings was hearing various justices of the Supreme Court and counsel for the applicant couples ask the questions that have been on the minds of many – is the Supreme Court being engaged on a contentious issue solely for political purposes? Why did the federal government add that redundant fourth question to the reference and cause an unnecessary delay in justice?

The original reference questions as proposed by then Justice Minister, Martin Cauchon, related to the legislation that was being proposed by the government. But even as he sent the reference to the Supreme Court, showing leadership and stewardship in his ministerial role, Cauchon traveled the country, urging provincial jurisdictions to comply with the amended common law prior to formal legislation.

However, the addition of the fourth question by Irwin Cotler mutated any ameliorative purpose in the Supreme Court of Canada reference into a political initiative, rather than one of law. This misuse of Canada's highest court leaves our judicial system open to unjustified political attacks by those who decry "activists judges".

Cotler's addition of the fourth question was in the mind of the justices. The first question, directed at the Attorney General of Canada (AGC), by Justice Major was aimed at determining the government's purpose in asking a question that essentially appeal cases they had already agreed were over.

"Couldn’t you have accomplished this [confirm that it is unconstitutional to prohibit same-sex couples from marriage] with an appeal?"

The AGC, looking somewhat chagrined, acknowledged that an appeal of the British Columbia or Ontario decisions would have set the framework for legislative debate, but indicated that "conscience" did not permit the AGC to appeal a decision that in essence they had come to agree with after losing challenges in 3 provinces.

Justice Binnie probed further, still attempting to get a satisfactory response to the government's inconsistent approach.

"The issue was not appealed from the Ontario, BC, Quebec cases because the Attorney General has accepted that the answer given by those courts was correct. Now given that that is the position of the government, and given that as a matter of policy, quite apart from the legal position, you’re moving forward or the government is moving forward with this bill, it seems to me that answering question four may not fulfill any useful purpose."

The AGC responded that the process would remedy the current patchwork of remedies in various jurisdictions, but the bench wasn’t buying that.

"But surely if this proposed bill is passed, the patchwork disappears? asked Justice Binnie."

"Are you in any position to say, whether or not if the answer to question four is no [the court says its okay to prohibit gay marriage], that the government intends to proceed forthwith or at any time with the legislation?" Justice Major asked.

When the AGC confirmed the government’s professed intention was to act quickly and to introduce legislation regardless of the non-binding opinion of the Court, Justice Major made clear his knowledge of current reports that the government once again intended to create a delay in justice.

"Where do I get the idea that it may be a year or more …"

The Attorney General assured the court that this is mere unsubstantiated newspaper gossip, but the court wasn’t done questioning the approach of the government in dealing with the issue of same-sex marriage.

"Aren’t you describing a political role?" asked Justice Bastarache. "You are saying basically that parliament wants to introduce and pass this legislation in any case and then you are saying ‘Well, politically it would be better for members of parliament to get a final answer on this question and that it would assist in the deliberation.’ It seems to be a description of a political role for the decision of the court. The legal role is not there. You’re saying the legislation’s going to be passed in any event."

Trying to avoid the legal minefield, Mr. Morris wryly observed, “I see my time is up.”

The entire court was clearly amused, but the justices were not to be placated by courtroom jesting. The Chief Justice pressed for an answer and when the AGC counsel tried to characterize the reference as business as usual, the Chief Justice pressed further.

"Do you know of any other precedent or case where the court has answered a reference where the government posing the reference had the opportunity to appeal and chose not to avail itself of that opportunity?"

The lawyer representing Canada could not provide an answer for the nation's Chief Justice. Instead, Mr. Morris muttered something about taking the query under advisement, as he wrinkled his brow and sat down.