Blind Justice - Ontario Court of Appeal accused of bias.

 

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Legal Canada - Ontario Court of Appeal accused of bias

July 30, 2003

Ontario Court of Appeal accused of bias
Our website coverage is cited as proof

"When a judge attends black history month, he is showing his commitment to equality. When he attends the Red Mass, he is showing respect for Catholics. When he attends Pride Week, he is making a political statement and is biased. Proof again that homophobia is the most politically acceptable form of discrimination, especially when wrapped in the cloak of religion and family values."
Douglas Elliott, commenting on the hypocrisy of homophobes.


When we were planning our January 14, 2001 marriage at the Metropolitan Community Church of Toronto (MCCT), we sent wedding invitations to the Prime Minister and the Governor General. The Governor General's office responded with a polite standard form letter, stating that Her Excellency was unable to attend.

"In sending their regrets," the response said, "Madame Clarkson and Mr. Saul have asked me to convey to you and to Mr. Varnell their congratulations and best wishes."

This simple courtesy sent bigots in the Catholic Church and the Alliance party into a fit of fury. The Canadian Conference of Catholic Bishops issued a letter of complaint, and the Alliance Party accused the Governor General of "social activism". Alliance M.P. Maurice Vellacott even went so far as to say that he would seek a motion of censure against the Governor General: a severe measure that is brought against an individual only in cases where there is political corruption or gross misconduct stemming from abuse of political position or power.

Our opponents were hysterical then, and they are still over-wrought now, as evident in a notice seeking a stay of the marriage decision handed down on June 10 by the Court of Appeal for Ontario.

For equal marriage:

The Attorney General of Canada's Memorandum of argument

Metropolitan Community Church of Toronto
Memorandum of argument

Affidavit of Rev. Dr. Brent Hawkes
Metropolitan Community Church of Toronto

Affidavit of Mary Bennett
Canadian Unitarian Coucil

Affidavit of Rev. Sara Boyles
Anglican Church of the Holy Trinity

Affidavit of Rev. Dr. Cheri DiNovo
Emmanuel-Howard Park United Church

Affidavit of Dr. Tim Ryan
Catholic Priest, Scarboro Foreign Mission

Affidavit of Rev. Rick McCutcheon
Presiding Clerk - Quakers

Affidavit of Marlene Jennings, M.P.

Affidavit of Svend Robinson, M.P.

Documents received yesterday by lawyers at McGowan Elliott & Kim show just how low our opponents are willing to go. An affidavit from Darrel Reid (Focus on the Family), filed on behalf of the Association for Marriage and the Family in Ontario, says that the group is seeking a stay of the June 10th decision from the Supreme Court of Canada, rather than the Court of Appeal for Ontario, because they don't have faith that the Ontario court is unbiased.

To support this serious charge Reid's affidavit claims:

"... the Association has a reasonable apprehension that it would not receive an impartial hearing before the panel of the Ontario Court of Appeal that decided this case. On June 26, 2003 the Law Society of Upper Canada held its annual Pride Week reception and public education forum in Toronto. A report of that event published on the website of "Equal Marriage for same-sex couples" showed that two of theCelebrating justice and same-sex marriage with the Law Society of Upper Canada members of the Court of Appeal panel attended the reception; one spoke at it. Photographs of the event were posted on the website. A copy of the web report is attached as Exhibit "H". Given that the report of the event describes it as a celebration of the success of the Respondent Couples before the Court of Appeal, the Association submits that the attendance of members of the panel at the reception creates an apprehension as to the impartiality of the panel on any hearing of a stay motion. For this reason, the Association requests that this Court hear the stay motion and not the panel of the Ontario Court of Appeal."

The affidavit supports a "Notice of application for leave to appeal and stay" which says:

"The Association moves for a stay before this Court [the Supreme Court of Canada] rather than before the panel of the Ontario Court of Appeal because the Association has a reasonable apprehension that it would not receive an impartial hearing before the panel of the Ontario Court of Appeal that decided this case."

The attendance of judges at the Law Society of Upper Canada reception is not unique to this year. Many of the justices have attended this annual function in the past and some have attended in spite of past confrontations with the gay and lesbian community. We described the event as a celebration of justice. It was not billed as such by the Law Society. It wasn't some kind of private party in honour of our victory.

Against equal marriage:

Notice of application to appeal and stay

Interfaith Coalition leave to appeal

The Association For Marriage and the Family Memorandum of argument

The Interfaith Coalition on Marriage and Family Memorandum of argument

Affidavit of Darrel Reid

Affidavit of Bruce Clemenger

Affidavit of Derek Lee, M.P.

Affidavit of John McKay, M.P.

Affidavit of Vic Toews, M.P.

For the suggestion that attendance at this reception indicates a pre-disposition towards bias in our favour to be at all creditable, the applicant would have had to launch their complaint at the time the panel was announced. By waiting until now, the opponents of equality appear to be trying the Clarkson maneuver again: when you have no logical argument, attack public citizens for the crime of common courtesy.

"This is the sleaziest move yet by these people," said Douglas Elliott, when we asked for his comment on this despicable action. "Chief Justice McMurtry was there to introduce a retired judge of the Supreme Court of Canada who was the speaker. Is the Supreme Court now disqualified too?"

The Christian-extremists , including Darrel Reid, Focus on the Family, and the Catholic Church, have behaved with great inconsistency and hypocrisy through-out our journey to full equality; first claiming that same-sex marriage was an issue to be decided by our elected leaders while slamming the courts for protecting us, and then when the Prime Minister and Justice Minister came out in support of our Charter rights, stating that same-sex marriage is a matter for the courts.

The latest move to discredit the Court of Appeal for Ontario further erodes their credibility.

"Members of the judiciary for many years have been attending the annual Red Our Charter under attack: opponents of same-sex marriage are taking shots at the Supreme Court of CanadaMass which is held in St. Michaelís Cathedral," Douglas said. "This is followed by a reception at Osgoode Hall held by Phil Horgan and his other Catholic legal cronies in the Thomas More Lawyers Guild. We would never suggest that judges who attend the Red Mass are biased against us, even though they are worshipping in Archbishop Ambrozicís cathedral. I have attended the Red Mass myself, and I can assure you I am not in league with the opposition. I might add that members of the judiciary do not attend an annual service at MCCT, although perhaps we should begin such a tradition. The Rainbow Mass, perhaps."

The panel of esteemed judges that heard the appeal included the Chief Justice of Ontario, Roy McMurtry, who in addition to being a former Attorney General of the province, was also one of the authors of Canada's Charter of Rights and Freedoms. The Chief Justice adjudicated our appeal with two other justices:

Mr. Justice James MacPherson was appointed a judge of the Court of Appeal for Ontario in May 1999. MacPherson has impressive credentials: he was Dean of Law at Osgoode Hall Law School, he was a Constitutional Advisor to Ontario and Saskatchewan, and he has chaired and served as a member of various human rights tribunals.

Madam Justice Eileen Gillese was appointed a judge of the Ontario Court of Appeal in January 2002. Like MacPherson, she too has been a Dean, at the Faculty of Law, the University of Western Ontario. Gillese was one of the first women to be awarded a Rhodes Scholarship.


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