Legal Canada - Caution: slippery slope
October 11, 2004
The lawyer representing Canada's Attorney General shocked supporters and opponents of marriage equality last week when he fell down the fabled "slippery slope" of same-sex marriage and into what the Supreme Court of Canada called "deep waters".
Peter Hogg, considered by many to be Canada's leading authority on constitutional law, performed more like a professor than a legal advocate during a spectacular misunderstanding of a question from the Supreme Court of Canada.
It happened early on Oct. 6, during the reference hearing on proposed legislation that will roll-out marriage equality to the remaining have-not provinces and territories. The court was concerned about the government's response to jurisdiction concerns raised by Alberta and Quebec (both interveners opposed to the proposed federal legislation, for different reasons).
Justice Lebel first asked whether the proposed federal act would impose itself on existing provincial legislation, such as Quebec's civil union legislation.
Hogg replied that federal legislation was dealing specifically with marriage and that if provinces had equivalent institutions, that was their business and they were not impacted by the federal legislation.
"We do accept that there are limits to the word marriage," Hogg answered. "It is difficult to place a definite articulation of those limits. In 1867, and perhaps this is the point I was coming to, and perhaps this is a helpful way to approach your question, in 1867 nobody contemplated that marriage would extend to same-sex couples. Homosexuality between consenting adults was actually criminal and remained criminal until 1969 ... I think it is very hard to say what changes in society might occur over the next 100 years which would invite perhaps other changes to marriage. All we say is that today, in 2004, it makes senses for marriage to encompass same-sex couples as well as opposite sex couples."
The court remained quiet, allowing Hogg to continue a presentation that tried to address the "capacity" issues of marriage, rather than the court's concern regarding federal and provincial jurisdiction.
Lawyer Douglas Elliott, representing the Metropolitan Community Church of Toronto marriages, later told us, "Professor Hogg's presentation was at times, well, professorial. For those of us who are more accustomed to the role of legal gladiators than detached academics, we were uncomfortable with his readiness to make concessions. In particular, his concession that he could not define the natural limits of the marriage power of the federal government."
Natural limits of marriage - The slippery slope
Justice Lebel tried to be helpful. "You left me with some uncertainty as to the nature of your position as to the scope of the federal power over marriage at this stage. Once we remove the traditional marker that existed in 1867 ... what would be the core that would really identify this federal power? What is the marker? Is it possible to define it?"
But Hogg wasn't thinking about federal or provincial limits. He seemed to be thinking that the court had raised the concerns of our opponents: that gay marriage was on the "slippery slope" to polygamy, incest, and bestiality.
"I'm not asking you to do this. I'm asking you to assist us today, with a case we're dealing with today." Justice Lebel said.
"What we say today is that the traditional opposite-sex requirement of marriage is not an essential requirement of marriage ..." Hogg continued, defending an unchallenged front. "The natural limits of marriage, which I acknowledge I cannot define, but I submit that the natural limits of marriage are not exceeded by admitting same-sex relationships to the institution, if parliament so chooses."
"On reflection," Douglas offered an explanation for Hogg's unexpected behaviour, "I believe he was simply adopting a strategy that we had tried unsuccessfully in the Divisional Court, namely try to steer the Court toward restricting itself to allowing same sex marriage without worrying about the ramifications. Unfortunately, I think he was answering the wrong question. The Court was not troubled by the future limits around things like polygamy, which seemed to be where Professor Hogg was heading. Rather, they were wrestling with the boundary between the provincial and federal power. This boundary was more in issue in this case than any other because Alberta denied federal competence over the matter at all, and Quebec and one other intervener denied federal competence to protect religious officials. Justice Lebel and Bastarache, and to a certain extent Justice Binnie were wrestling with this in light of Quebec's civil unions which look a lot like civil marriages including same sex marriage."
Natural limits of marriage - Quebec & Alberta
Quebec was at the Supreme Court of Canada reference to argue that the province gets to decide issues related to solemnization and clergy (and their protected rights).
"The opponents want sweeping statements, and we do, to a certain extent, to ensure passage of the bill," Douglas told us. "Quebec wants to reserve the right to restrict religious officials in the future, and the province cannot do so if the feds have occupied the field. I sensed considerable sympathy for this argument. Especially as the main case relied on by Professor Hogg on this point was written by Justice Lebel, who said that his decision was being stretched too far by the feds."
Quebec's defence of its turf may have unintended impacts on religious groups opposed to homosexuality.
"Quebec is taking the position only to defend its turf," Douglas said, "but it may have the unintended consequence of fortifying our opponents in the eventual debate in Parliament. Any shadow cast on absolute freedom of clergy to say no will be used to whip the religious right into a frenzy of paranoia."
Alberta's interest is much more fundamental. The province is Canada's only jurisdiction to argue that marriage is defined by heterosexuality (in essence an appeal of the June 10, 2003 Ontario Court of Appeal decision). Alberta argues that anything other than marriage is a matter of provincial jurisdiction, and that the feds cannot impose marriage equality on a province.
"Justice Bastarache may buy this argument, and possibly Justice Lebel, however I predict that it is more likely that we will have an 8 - 1 split on this issue in our favour," Douglas said. "No matter what the opinion is, since it is not binding, Alberta will make the argument again in any future case there. Having said that, I think all the judges are struggling with how to define the "natural limits" that define federal as opposed to provincial jurisdiction. As Justice Lebel noted, it is more than a word that is a trade mark of the federal government. I predict that they will have a hard time with this but will solve it."