Ladies & Gentlemen,
I believe that an error has been made by the Court of Appeal for Ontario in their recent decision to change the definition of marriage.
Regardless of which side of the issue we support, a mistake in law or logic cannot stand. It undermines the validity of the decision for citizens on both sides of the case/argument and for all Canadians who rely on sound individual case judgements as the basis for the Rule of Law.
As I understand it, the Egan case made sexual orientation an analogous ground for discrimination under the Charter and, the M.v.H case made HomoSex couples equivalent to CommonLaw HeteroSex couples under Canadian law.
After M.v.H, Parliament and Legislatures across the land amended scads of Bills and companies amended tons of procedures and policies to ensure that CommonLaw HeteroSex "benefits and treatments" were available to HomoSex partners.
When the Canadian House of Commons passed the bill establishing the rights gained by M.v.H, they included a section within the bill stating that the changes they were making in no way changed the definition of marriage as a man and a woman (see exact phrase below).
To me that means Parliament agreed that HomoSex couples were to be treated the same as CommonLaw HeteroSex ones, BUT that neither of these two UNMARRIED states was equivalent to married. (Ontario Family Law on property entitlements still differentiate between commonlaw and married as one example)
Three provincial courts ruled in favour of HomoSex marriage but delayed implementation until Parliament could act on their decisions (and included in their decisions, amendments to the definition of marriage IF Parliament did NOT act within the time-frame the courts had stipulated in their judgements).
But the Ontario HomoSex activists couldn't wait, they appealed the decision "to wait for Parliament" and got "the right judges" who decided that since the definition of Marriage as "one man and one woman to the exclusion of all others" was Judge-made common law, NOT Legislation, they could change the Judge-made law without offending Parliament (below at 149(c), 151).
This reasoning prevailed despite their own "preliminary observations" that:
[27] First, the definition of marriage is found at common law. The only statutory reference to a definition of marriage is found in s. 1.1 of the Modernization of Benefits and Obligations Act, S.C. 2000, c. 12, which provides:
For greater certainty, the amendments made by this Act do not affect the meaning of the word "marriage", that is, the lawful union of one man and one woman to the exclusion of all others.
Which to me DOES seems to indicate a definition of marriage within Canadian Legislation.
The Appeal Court's "preliminary observations" continue:
[28] The Modernization of Benefits and Obligations Act is the federal government's response to the Supreme Court of Canada’s decision in M. v. H. The Act extends federal benefits and obligations to all unmarried couples that have cohabited in a conjugal relationship for at least one year, regardless of sexual orientation. As recognized by the parties, s. 1.1 does not purport to be a federal statutory definition of marriage. Rather, s. 1.1 simply affirms that the Act does not change the common law definition of marriage. (underline added -Rce)
Which to me says that "the parties" in this case have decided that the express actions of Parliament, just 3 years ago, to include a re-statement of the traditional common law "one man, one woman" definition of marriage, prefaced by the phrase "for greater certainty" IS NOT a federal statutory definition of marriage.
I do not believe Parliament could have been MORE clear on what they meant regarding the definition of marriage and I believe it is part of a piece of legislation.
"The parties" referenced in the observations are NOT Parliament and cannot decide FOR Parliament (or for me) that s.1.1 is not a statutory definition.
Parliament should be offended (I know I am) when a Court allows an "exclusionary" meaning to be assigned to Parliament's expressly "included in legislation" words and then uses this same "recognized by the parties" meaning as the legal basis to free itself/ themselves from "judicial deference to elected bodies".
I believe this judgement's rationale for acting to change the definition of marriage contradicts its own 'First' observation and should be set aside as an error.
Canadians who believe in the Law and have faith in the Courts should be made aware of this error before too many lives are effected.
Robert Ede
http://www.ontariocourts.on.ca/decisions/2003/june/halpernC39172.htm
DATE: 20030610
DOCKET: C39172 and C39174
COURT OF APPEAL FOR ONTARIO
MCMURTRY C.J.O., MACPHERSON and GILLESE JJ.A.
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BETWEEN: |
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HEDY HALPERN and COLLEEN ROGERS, MICHAEL LESHNER and MICHAEL STARK, ALOYSIUS PITTMAN and THOMAS ALLWORTH, DAWN ONISHENKO and JULIE ERBLAND, CAROLYN ROWE and CAROLYN MOFFATT, BARBARA MCDOWALL and GAIL DONNELLY, ALISON KEMPER and JOYCE BARNETT |
Applicants
(Respondents, Appellants
by way of cross-appeal) |
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ATTORNEY GENERAL OF CANADA, THE ATTORNEY GENERAL OF ONTARIO, and NOVINA WONG, THE CLERK OF THE CITY OF TORONTO |
Respondents
(Appellant, Respondent
by way of cross-appeal |
. . .
149] We reject the AGC's submission that the only remedy we should order is a declaration of invalidity, and that this remedy should be suspended to permit Parliament to respond. A declaration of invalidity alone fails to meet the court's obligation to reformulate a common law rule that breaches a Charter right. Lamer C.J.C. highlighted this obligation in Swain at 978:
[B]ecause this appeal involves a Charter challenge to a common law, judge-made rule, the Charter analysis involves somewhat different considerations than would apply to a challenge to a legislative provision. "
Given that the common law rule was fashioned by judges and not by Parliament or a legislature, judicial deference to elected bodies is not an issue. If it is possible to reformulate a common law rule so that it will not conflict with the principles of fundamental justice, such a reformulation should be undertaken. (underline added - Rce)
No argument was presented to us that the reformulated common law definition of marriage would conflict with the principles of fundamental justice. Nor is there any issue that the reformulated definition would violate the Charter.
[150] In addition to failing to fulfil the court’s obligation, a declaration of invalidity, by itself, would not achieve the goals of s. 15(1). It would result in an absence of any legal definition of marriage. This would deny to all persons the benefits of the legal institution of marriage, thereby putting all persons in an equally disadvantaged position, rather than in an equally advantaged position. Moreover, a declaration of invalidity alone leaves same-sex couples open to blame for the blanket denial of the benefits of the legal institution of marriage, a result that does nothing to advance the goal of s. 15(1) of promoting concern, respect and consideration for all persons.
[151] We are also of the view that the argument made by the AGC and several of the intervenors that we should defer to Parliament once we issue a declaration of invalidity is not apposite in these circumstances. Schachter provides that the role of the legislature and legislative objectives is to be considered at the second step of the remedy analysis when a court is deciding whether severance or reading in is an appropriate remedy to cure a legislative provision that breaches the Charter. These considerations do not arise where the genesis of the Charter breach is found in the common law and there is no legislation to be altered. Any lacunae created by a declaration of invalidity of a common law rule are common law lacunae that should be remedied by the courts, unless to do so would conflict with the principles of fundamental justice. (underline added - Rce)
[152] The third step remains to be considered, that is, whether to temporarily suspend the declaration of invalidity. As previously noted, the AGC argues for a suspension in order to permit Parliament an opportunity to respond to the legal gap that such a declaration would create. Again, Schachter provides guidance on the resolution of this issue. Lamer C.J.C. emphasized, at p. 716, that "[a] delayed declaration allows a state of affairs which has been found to violate standards embodied in the Charter to persist for a time despite the violation." He stated, at pp. 715-16 and 719, that temporarily suspending a declaration of invalidity is warranted only in limited circumstances, such as where striking down the law poses a potential danger to the public, threatens the rule of law, or would have the effect of denying deserving persons of benefits under the impugned law. Further, Lamer C.J.C. pointed out, at p. 717, that respect for the role of the legislature is not a consideration at the third step of the analysis:
The question whether to delay the application of a declaration of nullity should therefore turn not on considerations of the role of the court and the legislature, but rather on considerations listed earlier relating to the effect of an immediate declaration on the public [i.e. potential public danger, threat to the rule of law, or denial of benefit to deserving persons].
[153] There is no evidence before this court that a declaration of invalidity without a period of suspension will pose any harm to the public, threaten the rule of law, or deny anyone the benefit of legal recognition of their marriage. We observe that there was no evidence before us that the reformulated definition of marriage will require the volume of legislative reform that followed the release of the Supreme Court of Canada's decision in M. v. H. In our view, an immediate declaration will simply ensure that opposite-sex couples and same-sex couples immediately receive equal treatment in law in accordance with s. 15(1) of the Charter.
[154] Accordingly, we would allow the cross-appeal by the Couples on remedy. We would reformulate the common law definition of marriage as "the voluntary union for life of two persons to the exclusion of all others". We decline to order a suspension of the declaration of invalidity or of the reformulated common law definition of marriage. We would also make orders, in the nature of mandamus, requiring the Clerk of the City of Toronto to issue marriage licences to the Couples, and requiring the Registrar General of the Province of Ontario to accept for registration the marriage certificates of Kevin Bourassa and Joe Varnell and of Elaine and Anne Vautour.[3]