Supreme Court of Canada Begins Same Sex Hearings

Several provincial courts have ruled that same-sex couples are entitled to the same treatment under the law and that the ban on same sex marriage is illegal.

In July 2003, the government of Prime Minister Jean Chr�tien unveiled draft legislation that would change the definition of marriage to include the unions of same-sex couples.

The government asked the Supreme Court of Canada to consider three questions about the draft legislation:

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

2. 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?

3. 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 the church's religious beliefs?

In January 2004, the government � now with Paul Martin behind the prime minister's desk � announced it was adding another question for the Supreme Court to consider:

4. is the opposite-sex requirement for marriage for civil purposes, as established by the common law and set out for Qu�bec 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?

Justice Minister Irwin Cotler said the Liberals remain committed to extending civil marriage to same-sex couples.

However, the bill did not come to a vote before Martin decided it was time to go the polls. The proposed bill died on the order paper � but the questions remained before the court, which set aside three days to hear arguments on the matter. source

The SCC has begun three days of hearings today and will hear from 28 interveners on both sides of the issue. The Court is not expected to rule for several months. SCC begins same-sex hearings

I don't envy them their task.

The first question is intended to answer Federal versus Provincial jurisdiction matters.

The federal government in my opinion needs to have the authority to declare the law of the land with respect to same sex marriage for reasons of consistency in all of Canada and impacts on numerous other laws and regulations (tax, wills and estate planning, family rights etc.). In the past two years, courts in Ontario, Quebec, British Columbia, Yukon, Manitoba and Nova Scotia have ruled against the ban on gay marriages. There is significant legal grass-roots support for this initiative and a majority of the Members of Parliament indicates that they support it.

Current Federal Justice Minister Irwin Cotler said he expects the Supreme Court will clear the way for Ottawa to recognize gay and lesbian marriages across the country.

The second question �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?� makes sure it will not be challenged on this ground. The SCC will have to rule on whether or not this bill passes the Charter test. If it does then all other courts will recognize it as law of the land and accept the courts reasoning. If it does not pass meet the Charter test look for some analysis of what is needed to pass.

The third question:

�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 the church's religious beliefs?�.

I think this question is brilliant.

Organized religions do not want to be forced to accept same sex marriage into their customs or their ranks. Freedom of religion guarantees them that right in my opinion and if the law passes this test then the rest of their arguments are simply moralization on the issue. Don�t want same sex marriage? No problem. It�s not forced upon you.

Freedom of religion does not extend to imposing a single morality upon the state (a.k.a. separation of church and state) or on the rest of us. After all freedom of religion includes freedom from religion.

The last question:

�Is the opposite-sex requirement for marriage for civil purposes, as established by the common law and set out for Qu�bec 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?�

This is an issue due to the two legal systems in Canada. The Quebec Civil Code (based on the French Civil Code) and the Common Law of Canada based on British Common Law. Three seats on the Supreme Court are reserved for Justices from Quebec, and they will likely take the lead on this issue. The Quebec Supreme Court has ruled to overturn the ban and thus the Feds need to make sure the new law also passes Civil Code tests.

There is currently no bill before Parliament. It died on the order table when the recent election was called but the case is not affected. This legal exercise is called a Supreme Court Reference (more on that in next post). The new minority government will have to address the ruling when it comes out by either re-introducing the bill (i.e. it passes all the tests) or introducing a new one in light of some guiding principle from the court.

It's a way for the government to get the court's opinion on major legal or factual questions - before they become law. The aim is make sure potentially contentious legislation would survive a challenge under the constitution.

The federal government has gone this route 76 times since 1892. Some of the most recent references include The Clarity Act (on Quebec secession) in 1998, the David Milgaard Conviction Reference (1991), and the Anti-Inflation Act Reference (1976).

Supreme Court references aren't limited to the federal government. The high court has also heard many references filed by provincial governments in the wake of rulings from their courts of appeal.

How does it work? Lots of paperwork. more

From the article cited above:

The Supreme Court has granted intervener status to many groups and individuals, which is why the court set aside three days to hear this case.

The court has also set strict limits on how long each intervener can speak.

The following individuals or groups were granted 20 minutes each to make their case:

The Attorney General of Quebec
The Attorney General of Alberta
The Association for Marriage and the Family in Ontario (made up of Focus on the Family (Canada) Association and REAL Women of Canada)
The Interfaith Coalition on Marriage and Family (made up of the Islamic Society of North America, the Catholic Civil Rights League and the Evangelical Fellowship of Canada)

The following groups or individuals were granted 10 minutes each to make their cases:

The Ontario Human Rights Commission
The British Columbia Civil Liberties Association
The Honourable Anne Cools, Member of the Senate
Roger Gallaway, Member of the House of Commons,
The Canadian Human Rights Commission
The Canadian Bar Association
The Canadian Coalition of Liberal Rabbis for Same-Sex Marriage (Rabbi Debra Landsberg, as its nominee)
Mouvement la�que qu�b�cois,
The Church of Jesus Christ of Latter Day Saints
The Foundation for Equal Families
The Metropolitan Community Church of Toronto
The Manitoba Human Rights Commission
The Canadian Civil Liberties Association
Martin Dion
The Coalition pour le mariage civil des couples de m�me sexe
The Working Group on Civil Unions
The United Church of Canada
The Canadian Unitarian Council
The Seventh-day Adventist Church in Canada

In addition, several couples making up groups known as the "EGALE couples" and the "B.C. couples" were given 30 minutes to speak - but the time had to be shared among them. If they couldn't agree on how to split the time, the court ordered that it would be split equally. The same order applied to a group of couples called the "Ontario couples" and the "Quebec couples." All four groups of couples were involved in lower court challenges to laws defining marriage as a union between a man and a woman.

Finally, the Canadian Conference of Catholic Bishops and the Ontario Conference of Catholic Bishops were given 20 minutes to share to make their views known to the justices.
/quote

So the SCC will answer the four questions with the input of all of the above who will prepare briefs for the court with their arguments and reasoning.

P.S. I�m a former member of one of the organizations listed above.

[edit on 10/6/2004 by Gools]

A summary of the first day's testimony is given here www.cbc.ca...

Seems the questions have been changed slightly or are being interpreted differently. The court is also showing some reticence posing this question:

Supreme Court of Canada justices asked federal lawyers Wednesday why they are being asked to rule on the constitutionality of current laws banning same-sex marriage, given that Ottawa has not appealed lower-court decisions on the matter.

Justice Michel Bastarache was among several justices who suggested Paul Martin's government is trying to use the court to do the politically charged work of introducing gay marriage across the country.

Bastarache said the role of the nine Supreme Court of Canada justices is to carry out legal work, not political work. more

I for one am happy this issues is taking a step closer to being resolved definitively thus removing a reason for political division.

Or is this one of those issues like abortion that have been decided but just won't go away?

Hmmmm...

Two days and no reaction from either side of the issue. Not sure what to make of that.

Well the CBC website has not given any coverage since day 2 of the hearings and the Globe and Mail has not given any summary of the testimony (I don't trus the National Post's impartiality in this matter so didn't bother to check). The Spureme Court website also has no information.

I was hoping to conclude this series with a short summary of the arguments but I can find none. I assume the hearings have concluded and that we will have a decision in 6-12 months. Perhaps then I will revive this thread. Or maybe not if this keeps going nowhere.

The Supreme Court of Canada is expected to hand down it's decision tomorrow morning (Thursday December 9). Seems it only took two months rather than the 6-12 initially predicted.

The CBC reports:

Federal Justice Minister Irwin Cotler said Wednesday he expects the Supreme Court to uphold the federal government's same-sex marriage legislation when it offers its opinion Thursday morning.

...

If the court rules in its favour, Cotler said the Liberal government would move fast to make the unions legal across the country, introducing the legislation in Parliament as early as this month.

"We expect that the two foundational principles � namely of equality rights and religious freedom � will be sustained," said Cotler, speaking after a Liberal caucus meeting.

"And therefore based on these Charter principles we will move ahead ... with all deliberate speed to introduce legislation which will extend civil marriage to gays and lesbians." story

Marital status is a provincial responsibility, but the definition of marriage is a federal reponsibility. So it looks like Canada is poised to become one of the first countries in the world to accept same-sex marriage at the national level.

For those who are wondering (or ignorant)... no I am not gay but I support this initiative.

I love living in a progressive country... pass the bong...

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yeaaaa none of this foolishness for me...being gay is i guess alright but to change the definition..i dont want that...but who am i...im just one of the majority of heterosexuals who want no change but dont speak up...


support straight pride...maybe we can have our own parade?

i sure hope the supreme court slows all this stuff..and really thinks...WHERES THE REFERENDUM...IF QUEBEC CAN HAVE ONE..I WANT ONE TOO!!