Legal Canada - Marriage reference: points and predictions

October 12, 2004

Marriage reference: points and predictions
Supremes will be critical of the politics of marriage

Last week's Supreme Court of Canada reference on marriage didn't change anyone's prediction that the nation's highest court will not stop the progress of marriage equality underway in Canada. Instead, many are wondering whether the court will spank the federal government for politicizing gay marriage, delaying justice, and abusing the judicial process when Paul Martin's government asked the fourth question in the government's reference to the court.

"The good guys were asked very few questions, and none by the two new judges," Douglas said. "Justice Fish and Deschamps asked no questions at all, while Justice Lebel was the most active questioner over all ... Justices Abella and Charron were very limited and very circumspect in their interventions. Partly this was a result of their junior status but perhaps also to avoid being a target of the opponents who tried to have them pulled off the case, I suspect.

Unlike the legal guardian angels donating their time on the side of marriage equality, the lawyers for our opponents were paid for their work (and we hope they were very expensive!). The legal teams hired by our opponents tried out their routines in the lower courts of Ontario, Quebec, and British Columbia, and despite a proven track record of loss after loss, little was adjusted along the way, except perhaps a moderation of language. It seemed like the defenders of discrimination weren't getting their money's worth. Is it normal for an experienced litigating team to stick to a losing strategy all the way to the Supreme Court of Canada?

"Although there was some adjustment in our opponents' approach, I suggest they expected to lose and wanted do go down in full sail," Douglas said. "I think they sense this battle is lost."

Predicted Outcome

Like everyone else, Douglas agrees that the Supreme Court of Canada will answer yes to question #2 (Is gay marriage aligned with the Charter), and yes to question #3 (Are religious rights protected?). But Douglas now believes the court will refuse to answer the political 4th question that Paul Martin tagged on to the reference as delay tactic and a faux appeal.

"I think this is entirely possible, although I am surprised. They have the right to refuse to answer any question, but they rarely do decline. Cynthia Petersen [pictured at right] made a brilliant presentation on this point."

Instead of answering question four, the court may simply confirm that the lower court decisions were final and binding (the Supreme Court of Canada has already declined to accept an appeal of the Ontario ruling).

In addition to pondering whether to answer the fourth question, Douglas believes the court will be exploring:

• Quebec's issue of whether the federal government or provincial governments are responsible for the protection of clergy.
• What are the appropriate hallmarks of marriage that define the extent of federal power over relationship recognition, as opposed to the provincial power.
• To what extent the court wishes to comment on the protection of religious freedom outside the clear setting of a clergy person officiating over a marriage inside a religious edifice such as a church, synagogue or mosque.

"Although the bad guys did an admirable job with tough material, I will allow myself to say that our team was nothing short of amazing," Douglas said, thinking of his team at Roy Elliott Kim O'Connor: Trent Morris, Victoria Paris, and Jason Tan; plus his colleagues: Cynthia Peterson (EGALE), Martha McCarthy and Joanna Radbord (representing the Ontario civil marriage couples), Supreme Court "virgins" like Rob Hughes and Linda Plumpton who, new to the team, delivered an amazing tribute to our families, and many others found on the pages of this website.

Our thanks to all for an incredibly well-done job!

"We proceeded effortlessly from one to the next," Douglas said. "I am sure it looks easy to those watching, but it is not. It is hard for folks watching to imagine the stress for someone like me. I had spent all my adult life working for our equality rights. I had spent thousands of hours preparing for this case. And I had ten minutes to convey a message that I hoped would make a difference. I hope I did."