Legal Canada - Supreme Court reference

February 20, 2004

Martin's machinations move marriage
Supreme Court Reference to Oct. 2004.
Political "punt" pushes legislation to 2005

The Martin government, prior to its current scandal of fiscal fraud, was planning a Spring 2004 election and they wished to push same-sex marriage to the back-burner while they went to the voting booths for another term. Liberal Members of Parliament were told that the issue had to be "punted" before the next election.

The play moved the Supreme Court reference six more months into the future.

The court ordered the AGC to provide the amended reference to those who are already involved in the process (see January 25 report, below).

The federal government intends to ask the court if the exclusion of gay and lesbian couples from marriage is constitutional. Four courts in British Columbia, Ontario, and Quebec have already said that the Canadian Charter requires marriage to be open to all couples.

Provincial Attorneys General or Ministers of Justices from any territory in Canada can apply to intervene, but they must do so by February 27, 2004. Alberta has already announced its intention to participate on behalf of marriage discrimination.

The AGC factum may be expanded by 10 more pages, provided this is submitted no later than March 30, 2004.

Persons not already granted leave to intervene in this reference have until Aprtil 6, 2004 to apply.

The hearing of the Reference is scheduled for October 6, 7 and 8, 2004.

January 25, 2004

Supreme Court reference
A roundup of the usual suspects

"There is a concern that the Court rein in any effort to try to broaden the scope of the reference, as some interveners proposed to do. This is not an appeal from Halpern, and it should not be allowed to turn into one."
Douglas Elliott, lawyer for the Metropolitan Community Church of Toronto.

The participants of the Supreme Court of Canada reference on the new legislation for same-sex marriage were announced January 23 in an order/motion issued by Justice Iacobucci.

"We're all invited," Michael Hendricks wrote in an email received yesterday. Considering that the equal marriage advocate is back in Quebec court on Jan. 26 to defend his lower court victory, you could be forgiven if you looked for any tone of irony or sarcasm. It's tough to be planning for the Quebec Appeal Court and the Supreme Court of Canada at the same time.

Representation of Same-sex Couples

The Quebec couple and the Ontario civil marriage couples are intervening together with lawyer Martha McCarthy. The Metropolitan Community Church of Toronto (MCCT) marriages (our double ceremony with Anne and Elaine Vautour) will be represented by Douglas Elliott. The British Columbia Couples are represented by Kathy Lahey, and the B.C. Egale couples are represented by Cynthia Petersen. Everyone is limited to a 20 page factum.

Our supporters

• Michelle Douglas and Judge David Corbett from the Foundation for Equal Families
• the Canadian Human Rights Commission
• the Ontario Human Rights Commission
• the British Columbia Civil Liberties Association
• the Canadian Bar Association
• the Manitoba Human Rights Commission
• the Mouvement laïque québécois
• the Canadian Coalition of Liberal Rabbis for Same-Sex marriage
• the Foundation for Equal Families

Opposing equality

• Senator Anne Cools (supporter of the discriminatory Bill S-9) and Member of the House of Commons Roger Gallaway
• Focus on the Family and R.E.A.L. Women will appear collectively as the Association for Marriage and the Family in Ontario
• Interfaith Coalition on Marriage and Family, including the Islamic Society, the Catholic Civil Rights League and the Evangelical Fellowship
• the Church of Jesus Christ of Latter Day Saints
• the Canadian Conference of Catholic Bishops
• the Ontario Conference of Catholic Bishops

Followers of these proceedings will note the overwhelming presence of the Catholic Church. Their voice is represented three times in opposing equality - one for each member of their holy trinity.

"I am glad that we will be able to participate and that we will be able to file additional materials," lawyer Douglas Elliott told us. "I am disappointed that the 'equal' approach means in fact that the Catholic Church will get three times as much opportunity to present their case as will MCCT. Of course, they need it more than we do because they have to try to persuade the Court to support inequality and state sanctioned restrictions on the religious freedom of people who do not agree with the Pope."

The Supreme Court of Canada reference is scheduled to be heard on April 16, however the governing Liberal party may delay the reference, by quibbling over the reference questions, in order to delay the proceedings, and justice, until after an expected spring election.