This is a procedure that is rarely permitted by the Supreme Court, and has never been permitted in a constitutional case.
Legal Canada - A motion to quash marriage appeals
September 29, 2003
A motion to quash marriage appeals
Supreme Court of Canada hears both sides on Oct. 6
The Ontario Court of Appeal ruled on June 10, 2003 that the common law definition of marriage must be changed immediately to conform to the Charter by defining it as the lawful union of two persons. Shortly thereafter, the Federal Government, the Appellant in the case, announced that they would not seek leave to appeal the decision to the Supreme Court of Canada, thus bringing an end to the litigation. The Government announced that it had decided to accept the new definition of marriage, and that it would introduce legislation. Three questions including a question concerning religious freedom would be placed before the Supreme Court in a Reference.
However, two groups that had intervened in the Court of Appeal, one composed of religious conservatives such as the Catholic Bishops and one composed of secular conservatives like REAL Women, filed their own motions for leave to appeal to the Supreme Court of Canada. They also brought motions seeking to have their organizations substituted for the federal government as Appellant, that is, to effectively step into the shoes of the Attorney General and take over the litigation for the purposes of pursuing an appeal the Attorney General does not wish to pursue. This is a procedure that is rarely permitted by the Supreme Court, and has never been permitted in a constitutional case. In an unprecedented move, the would be appellants have filed affidavits from disgruntled Members of Parliament in support of their efforts, including well known Supreme Court critic Vic Toews.
As a result, the parties to the litigation in the Ontario Court of Appeal, namely the Metropolitan Community Church of Toronto, the Applicant Couples and the Attorney General of Canada have all brought motions to quash the proposed appeals by the interveners. They are asking the Court to refuse to permit to the opponents of equal marriage to hijack the litigation, and to effectively permitting backbench MPís to overrule the governmentís decision to end the litigation. The motions will be heard by five justices of the Supreme Court of Canada on Monday, October 6.
These motions are critical in the battle for equal marriage. They will determine whether there will be an appeal from the landmark Ontario Court of Appeal ruling, or whether the government will be permitted to proceed with their plans to introduce legislation and conduct a reference. The decision will also have ramifications for other cases. If the interveners in this case are successful in hijacking the governmentís abandoned litigation, it will open the door for any disgruntled citizen to try to take over litigation that their government has decided not to pursue.