Marriage reference: points and predictions










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Legal Canada - Marriage reference: points and predictions

October 12, 2004

Marriage reference: points and predictions
Supremes will be critical of the politics of marriage

Last week's Supreme Court of Canada reference on marriage didn't change anyone's prediction that the nation's highest court will not stop the progress of marriage equality underway in Canada. Instead, many are wondering whether the court will spank the federal government for politicizing gay marriage, delaying justice, and abusing the judicial process when Paul Martin's government asked the fourth question in the government's reference to the court.

"The judges were unusually vocally hostile to the feds from the beginning about the process, and indeed the last question from the Chief Justice was on this very point," agreed Lawyer Douglas Elliott (from the firm Roy Elliott Kim O'Connor, representing our church, the Metropolitan Community Church of Toronto). "They clearly feel that they are being used as a political football. They do not understand the idea of [the federal government] not appealing the lower court rulings, and then asking the fourth question in particular. They are going to write on this topic. I suspect the visceral hostility is partly related to the attacks of our opponents on so-called judicial activism, which this clearly is not. Justice Major asked about something he had read about the AGC planning to sit on this, which came right out of the Toronto Star. I can never remember a judge of this court asking a question based on what politicians were said to be doing by the newspapers, although we all know that judges do read newspapers."

The temperature of the justices of the Supreme Court of Canada could also be read by their response to the parties that were present to defend same-sex marriage.

Equal Marriage For Same-Sex Couples

The Fourth Question

PM Jean Chretien (2003):

Is the draft bill within the exclusive legislative authority of the Parliament of Canada?

Is the section of the draft bill that extends capacity to marry to persons of the same sex consistent with the Canadian Charter of Rights and Freedoms?

Does the freedom of religion guaranteed by the Charter protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs?

PM Paul Martin (2004)

Is the opposite-sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in s. 5 of the Federal Law-Civil Law Harmonization Act, No. 1, consistent with the Canadian Charter of Rights and Freedoms? If not, in what particular or particulars and to what extent?

"The good guys were asked very few questions, and none by the two new judges," Douglas said. "Justice Fish and Deschamps asked no questions at all, while Justice Lebel was the most active questioner over all ... Justices Abella and Charron were very limited and very circumspect in their interventions. Partly this was a result of their junior status but perhaps also to avoid being a target of the opponents who tried to have them pulled off the case, I suspect.

"It was noteworthy that we had three days set aside for this momentous case, and the court imposed miserable time limits on everyone. They completed the case in half the time allowed, and did not seem the least interested in hearing further from anyone ... This suggests that they have a strong inclination as to how to approach the case already based on the written arguments that were filed, which is not unusual. The public and some lawyers seem to think the cases are won or lost on oral argument, but in fact the written argument is much more important. It is just less visible, and certainly less entertaining."

Victoria Paris, Douglas Elliott and Trent Morris, representing our marriage at the Metropolitan Community Church of Toronto (Photo by, 2004)

Lawyers Victoria Paris and Trent Morris assisted lead counsel for the Metropolitan Community Church of Toronto, Douglas Elliott (seated), all from the firm Roy Elliott Kim O'Connor

Unlike the legal guardian angels donating their time on the side of marriage equality, the lawyers for our opponents were paid for their work (and we hope they were very expensive!). The legal teams hired by our opponents tried out their routines in the lower courts of Ontario, Quebec, and British Columbia, and despite a proven track record of loss after loss, little was adjusted along the way, except perhaps a moderation of language. It seemed like the defenders of discrimination weren't getting their money's worth. Is it normal for an experienced litigating team to stick to a losing strategy all the way to the Supreme Court of Canada?

"Although there was some adjustment in our opponents' approach, I suggest they expected to lose and wanted do go down in full sail," Douglas said. "I think they sense this battle is lost."

Predicted Outcome

Like everyone else, Douglas agrees that the Supreme Court of Canada will answer yes to question #2 (Is gay marriage aligned with the Charter), and yes to question #3 (Are religious rights Cynthia Petersen (Photo by, 2003)protected?). But Douglas now believes the court will refuse to answer the political 4th question that Paul Martin tagged on to the reference as delay tactic and a faux appeal.

"I think this is entirely possible, although I am surprised. They have the right to refuse to answer any question, but they rarely do decline. Cynthia Petersen [pictured at right] made a brilliant presentation on this point."

Instead of answering question four, the court may simply confirm that the lower court decisions were final and binding (the Supreme Court of Canada has already declined to accept an appeal of the Ontario ruling).

In addition to pondering whether to answer the fourth question, Douglas believes the court will be exploring:

  • Quebec's issue of whether the federal government or provincial governments are responsible for the protection of clergy.
  • What are the appropriate hallmarks of marriage that define the extent of federal power over relationship recognition, as opposed to the provincial power.
  • To what extent the court wishes to comment on the protection of religious freedom outside the clear setting of a clergy person officiating over a marriage inside a religious edifice such as a church, synagogue or mosque.

"Although the bad guys did an admirable job with tough material, I will allow myself to say that our team was nothing short of amazing," Douglas said, thinking of his team at Roy Elliott Kim O'Connor: Trent Morris, Victoria Paris, and Jason Tan; plus his colleagues: Cynthia Peterson (EGALE), Martha McCarthy and Joanna Radbord (representing the Ontario civil marriage couples), Supreme Court "virgins" like Rob Hughes and Linda Plumpton who, new to the team, delivered an amazing tribute to our families, and many others found on the pages of this website.

Our thanks to all for an incredibly well-done job!

"We proceeded effortlessly from one to the next," Douglas said. "I am sure it looks easy to those watching, but it is not. It is hard for folks watching to imagine the stress for someone like me. I had spent all my adult life working for our equality rights. I had spent thousands of hours preparing for this case. And I had ten minutes to convey a message that I hoped would make a difference. I hope I did."

Summaries from the Court of Appeal for Ontario:
(the breakthrough case that ended marriage discrimination)
Summaries from Ontario divisional court:
(the first victory in Canada for marriage equality)

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