Supreme Court of Canada decision
The convictions of bigotry
marriage to include same-sex couples is a matter for Canadians and their elected
leaders - and not the courts - to decide"
matter has far-reaching consequences nationwide, and the nation's highest court
should be permitted to consider the fundamental issues."
Legal Canada - Ontario Court of Appeal accused of bias
July 30, 2003
Court of Appeal accused of bias
"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
Community Church of Toronto
of Rev. Dr. Brent Hawkes
of Mary Bennett
of Rev. Sara Boyles
of Rev. Dr. Cheri DiNovo
of Dr. Tim Ryan
of Rev. Rick McCutcheon
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 the 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:
The Association For Marriage and the Family Memorandum of argument
The Interfaith Coalition on Marriage and Family Memorandum of argument
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 Mass 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.