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HOMOSEXUAL (SAME-SEX) MARRIAGES IN CANADA

ONTARIO COURT CASE; PART 6

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Background:

This is the case that legalized same-sex marriage (SSM) in Ontario, Canada:

The Ontario Court of Appeals issued a decision on 2003-JUN-10 requiring the province of Ontario to provide marriage licenses to, and to register the marriages of, same-sex couples. Both the provincial and federal governments decided that, as the defendants in the case, they would not appeal that ruling to the Supreme Court of Canada. The federal government then prepared legislation to legalize same-sex marriage across Canada and sent it to the Supreme Court of Canada for a review of its constitutionality. Two conservative groups who had intervener status at the Court of Appeals sought permission to appeal the case to the Supreme Court of Canada. They are supported by three members of parliament.

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Previous developments in this case are described in another essay

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Sponsored link:

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Continuing events:

bullet2003-OCT-6: Groups attempt to appeal case to Supreme Court: Two groups have been involved in the Ontario SSM case since 2001-NOV:
bulletThe Interfaith Coalition on Marriage and Family, is composed of four conservative religious groups: the Evangelical Fellowship of Canada, the Catholic Civil Rights League, the Islamic Society of North America and the Ontario Conference of Catholic Bishops.
bulletThe Association for Marriage and the Family, is composed of three religious and social conservative groups, including Focus on the Family Canada, REAL Women of Canada and the Canadian Family Action Coalition.

The Toronto Star referred to them as "so-called" pro-family groups, 1 presumably because the Coalition and Association are both attempting to deny the right of loving, committed same-sex couples and families to marry, and to have themselves and their children protected under law. These two groups had "party intervener" status during the appeal before the Ontario Court of Appeals. However, they were not the main parties to the litigation. Many observers believed that once the federal government decided to not appeal the decision to the Supreme Court of Canada, that the case was closed. However, the Coalition and the Association decided to try to obtain leave from the Supreme Court to appeal the ruling themselves. This is an rare occurrence. There are legal precedences for both allowing and denying the right of appeal by interveners.

Some responses:
bulletDavid Brown, lawyer for the Association for Marriage and the Family in Ontario feels that the Court should grant their request. He said: "The court is focused on hearing cases of public importance, and I don't think there has been one more important than this that has come up in the last few years."  2 He also said: "This is not the case of a stranger coming off the street. The nation is saying this [marriage] is our biggest institution. Parliament has not spoken. There is confusion. The court should speak on this issue." 4
bulletMichael Martens, a spokesperson for Focus on the Family Canada said: "Quite frankly, this is action the federal government should be taking. However, because they have abdicated their leadership and ignored the will of the public, we have no choice but to step in and appeal this fundamental issue to the Supreme Court of Canada....We have intervened at every level of the case, representing millions of Canadians and talking about an issue that society and Parliament as a whole are divided upon. This is something that the court is taking seriously, and that's good news." 2

Also asking the court to allow an appeal were two Liberal members of parliament: Derek Lee, John McKay, and the Canadian Alliance's justice critic, Vic Toews.

The case was heard by the Supreme Court on 2003-OCT-6.

The five senior judges who attended the hearing appeared critical of some of the points raised by lawyers for the Coalition and the Association:
bulletJustice Frank Iacobucci asked the groups' lawyers how the court could reasonably be expected to force the government to "battle until the end" now that they have concluded that restricting marriage to opposite-sex couples is unconstitutional. Apparently responding to arguments by the two groups that the federal government is going beyond what is "constitutionally required" in letting gays and lesbians marry, Justice Iacobucci asked lawyer Peter Jervis: "Is it not the government's discretion to pass laws that go beyond the minimum requirements of the constitution?"
bulletChief Justice Beverley McLachlin noted that it would be "quite unprecedented" for the court agree with the groups' recommendation to "reach out and take jurisdiction" away from the federal government even as the latter is in the process of crafting legislation.

The same-sex couples who initiated the lawsuit and the federal government were, for once, on the same side. Both asked the court to reject the request of the Coalition and Association:
bulletGraham Garton, a lawyer for the federal government, said: "The whole purpose of this proposed exercise is political and not legal." He said that the religious groups want an advisory opinion from the court that they can then carry to Parliament and "use it in political debate."
bulletDouglas Elliot, a lawyer for the Metropolitan Community Church of Toronto said the groups' sole raison d'tre is to oppose equality for same-sex couples. He said that it was hypocritical of these groups to criticize judicial activism when the courts rule in favor of equality for gays and lesbians, and then to use the courts to force the issue after the government's dropped it.
bulletMartha McCarthy, lawyer for the same-sex couples said that the judicial clock should not be turned back now that more than a thousand gay and lesbian couples have married in Ontario and British Columbia. She told reporters: "This would be an unheard-of expansion of the role of an intervener in a Charter case." 1

The Supreme Court of Canada reserved its decision on whether "to allow religious and so-called pro-family groups to revive an appeal of the Ontario court decision..." 1

bullet2003-OCT-9: Groups' attempt to appeal case rejected: The Supreme Court of Canada acted in what must be unprecedented speed by denying the OCT-6 request of the Interfaith Coalition on Marriage and Family and the Association for Marriage and the Family. By convention, the Court gave no reason for denying the petition. The vote among the five most senior judges of the court was unanimous.

Some responses:
bulletJustice Minister Martin Cauchon said that the Coalition and Association were not losers in the original case and thus should not be allowed to appeal. 3
bulletGianluca Ragazzini, a gay man who was married this June said that he was "thrilled [with the decision] because finally we are sure that there is no chance that our union can be revoked." 3
bulletVic Toews, member of parliament for the far-right Alliance party and justice critic, said: "One more door has now been slammed to the public on the same-sex marriage debate." 3 He also said: "Canadians who support the traditional definition of marriage placed a lot of hope in this appeal being heard. Today's court decision effectively disenfranchises these Canadians from participating in a debate that will result in far-reaching social change." 4
bulletAlex Munter, spokesperson for Canadians for Equal Marriage, said: "The practical effect of the Supreme Court's ruling ...is to say that same-sex marriage in Ontario and British Columbia are here to stay." However, he noted that until a same-sex marriage bill passes Parliament and becomes law, SSM will not be available in the rest of the country. 3
bulletBruce Clemenger, president of the Evangelical Fellowship of Canada (EFC; a member of the Interfaith Coalition) said: "We have lost an important opportunity to express the concerns of millions of Canadians...When challenges to the definition of marriage were started in 2000, it was expected that they would eventually be decided by the Supreme Court of Canada." 5
bulletJanet Epp-Buckingham, counsel for the EFC said: "We're profoundly disappointed that they're refusing to hear the appeal...We all expected when these cases started the Supreme Court of Canada would make the final ruling on" the constitutionality of traditional heterosexual marriage. She said that the two groups will now try to intervene in the reference sent to the Supreme Court by the federal government. That reference currently asks for the Court to assess the constitutionality of same-sex marriage. The Coalition and Association will ask the court to broaden the government's reference. They will ask that the court also rule on whether restricting marriage to opposite-sex couples is constitutional. 3
bulletDarrel Reid, president of Focus on the Family Canada said that the Court did "a disservice to Canadians.....The Supreme Court of Canada should have taken the opportunity to debate the fundamental issue and not just the minor details." 6
bulletGwen Landolt, vice-president of REAL Women said: "Nothing has been resolved." 6
bulletDerek Rogusky, vice-president of family policy for Focus on the Family, Canada said that MPs who had hoped to avoid this politically volatile issue now have no choice but to tackle it themselves. "They won't be able to look to the courts to solve it for them." 6

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Later developments in this case are described in another essay

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References:

  1. Tonda MacCharles, "Gay marriage back in court: Pro-family group faces top justices. Wants traditional marriage examined." The Toronto Star, 2003-OCT-7, Page A8.
  2. "Supreme Court hears case for marriage appeal," Today's Family News, 2003-OCT-7.
  3. Tonda MacCharles, "Gay-marriage foes to lose fight: Top court turns sown their appeal bid. Religious, family groups undaunted," The Toronto Star, 2003-OCT-10, Page A8.
  4. Kirk Makin, "Top court refuses coalitions' same-sex appeal bid," The Globe and Mail, 2003-OCT-10, Page A4, at: http://www.globeandmail.com/
  5. Janice Tibbetts, "Gay marriage is here to say: Supreme Court throws out appeal of same-sex unions," CanWest News Service. Published by Kingston Whig Standard, Kingston, ON, 2003-OCT-10, Pages 11 & 18.
  6. "Supreme Court rejects marriage appeal," Today's Family News, Focus on the Family Canada, 2003-OCT-14.

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 Home page > Homosexuality > Same-sex marriage > Canada > here

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Copyright 2003 by Ontario Consultants on Religious Tolerance
Latest update: 2003-OCT-16
Author: B.A. Robinson

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