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ATTACKS ON THE FAMILY THROUGH THE COURTS:
REAL WOMEN INTERVENTIONS

REAL Women has been heavily involved in some recent court cases in Canada dealing with the rights of Canadian families.

1. Spanking Case

(Court Challenge to remove S.43 from the Criminal code which permits parents to discipline their children by way of spanking)

S.43 of the Criminal Code permits parents to spank their children for correction purposes, if it is reasonable under the circumstances.

A youth Foundation called the Canadian Foundation for Children, Youth and the Law obtained $55,000 from the federal Court Challenges Program to challenge this law, claiming that the spanking of children is child abuse, and that spanking discriminates against children on the basis of age, contrary to the equality section (S.15) of the Charter of Rights.

(This same Foundation intervened in a case in 1995 in which it argued that the age of consent for anal intercourse (sodomy) should be changed from 18 to 14 years of age.)

REAL Women joined with three other pro-family groups, Focus on the Family, the Home School Legal Defence Association, and the Canadian Family Action Coalition (CFAC) to intervene jointly in the case, calling ourselves the Coalition for Family Autonomy.

The Canadian Teachers Federation argued on our side of the issue against removing the protection of S.43, together with the Attorney General of Canada; on the other hand, the Association of Children's Aid Societies in Ontario supported the Foundation as an intervener in support of removing S.43 from the Criminal Code. The latter organization argued that S.43 of the Criminal Code contributes to an environment where violence against children is accepted.

On July 5, 2000, Mr. Justice McCoombs handed down his decision declaring that S.43 was constitutional and was necessary to provide parents and teachers with a protected sphere of authority within which to fulfill their respective roles (see REALity, July/August, 2000, p. 1).

Immediately following the decision, the Foundation for Children announced it intended to appeal the decision. This was easy for it to do, as it received a further $35,000 from the Court Challenges Program to cover their appeal costs. However, REAL Women and the other pro-family groups have had to cover all our appeal expenses from our already empty pockets.

Ontario Court to Appeal
Hearing on Spanking

The case before the Ontario Court of Appeal was set for Monday, September 10, Tuesday, September 11 and Wednesday, September 12th.

Justices Marvin Catzman, David Doherty and Stephen Goudge heard the appeal.

In order that the public properly understand our position on S.43, immediately prior to the opening of the Appeal court hearing, our pro-family coalition held a press conference in Toronto's Marriott Hotel. (The expenses for this were generously covered by Focus on the Family.) At the press conference we were able to provide the media with our perspective on the issue, including the fact that, according to an Angus Reid poll taken in November, 1999, fully 84% of Canadians supported our position that the reasonable spanking of a child should not be a criminal offence.

The first day of the hearings were taken up by the arguments by the challengers of the law, the Foundation and the Association of Children's Aid Societies. It seemed, however, that the three judges were not too impressed by their arguments.

The following day, September 11, it was our side's turn to argue before the court. However, the lawyer for the federal Attorney General was only an hour into her arguments when the court was ordered cleared. The court, Osgoode Hall, was situated only a few blocks from the office of the US Consulate and the Toronto Police ordered the streets and buildings cleared in the area for security reasons as a result of the terrorism in New York an hour or so earlier.

However, the following day, September 12, the courts re-opened to hear the federal Attorney General and later, our arguments by our lawyer, David Brown, senior partner in the prominent Toronto law firm, Stikeman and Elliott. Mr. Brown was eloquent arguing in support of the important role of the family in raising children and the obligations of parents to correct their children. He also emphasized that state intervention in the day-to-day activities of families must be minimized to protect the parent-child relationship which is in the best interests of the child.

The court appeared both attentive and respectful of the Attorney General and Mr. Brown in their arguments. We await the court's decision. Even if the decision should come down unanimously in our favour, we know that the Foundation will never accept the decision, and will appeal, yet again, this time to the Supreme Court of Canada - their appeal covered by yet another $35,000 grant from the infamous Court Challenges Program.

We will then have no option but to be involved in yet another appeal in this case to protect the family from state interference.

2. Same-sex Marriage Case

Homosexual activists commenced their attack on traditional marriage by challenging the law that limits marriage to individuals of the opposite sex. The legal challenges were commenced simultaneously in three provinces, BC, Quebec and Ontario.

British Columbia's
Same-Sex Challenge

The same-sex challenge of traditional marriage was argued in July before Mr. Justice Pitfield of the BC Supreme Court.

The petitioners bringing the court challenge were eight gay and lesbian couples who argued that the government and Canadian society do not give their relationships equal value to opposite sex couples, since homosexuals are prohibited from entering into legal marriage. This implies, they argued, that their relationships are less deserving of recognition "just because they are gay," and, therefore, made them second-class citizens. They argued that the prohibition against their entering into legal marriage was discriminatory in that it contravenes S.15 (equality) of the Charter.

The Attorney General of BC, under the former NDP provincial government, had also been a petitioner in this case. However, when the provincial Liberals, under Gordon Campbell, assumed power in May, 2001, the new Attorney General withdrew from the case, but endorsed the view that a common law marriage is restricted to persons of the opposite sex.

The Ottawa-based homosexual lobby group, Equality for Gays and Lesbians Everywhere (EGALE), intervened on behalf of the petitioners. The Attorney General of Canada defended the law on traditional marriage and argued against same-sex marriage. The Inter-Faith Coalition, consisting of the Evangelical Fellowship of Canada (EFC), the Canadian Conference of Catholic Bishops (CCCB), the Catholic Archdiocese of Vancouver, and the Chinese Alliance, as well as national Sikh and Muslim associations intervened on the Crown's side, as did the Coalition for Marriage and Family, which consisted of REAL Women of Canada, BC Chapter, Focus on the Family and the Canadian Family Action Coalition (CFAC).

The decision by Mr. Justice Pitfield was handed down in early October, rejecting the petitioners' claim for same-sex marriages. Mr. Justice Pitfield stated that the biological reality is that opposite sex and same-sex relationships can never be the same and that essential distinctions remain no matter how close the similarities are, by virtue of social and acceptance and legislative action.

He went on to say:

… the core distinction between same-sex and opposite-sex relationships is so material in the Canadian context that no means exist by which to equate same-sex relationships to marriage while at the same time preserving the fundamental importance of marriage to the community. …

… They cannot be equated except by changing the deep-rooted social and legal relationship around which Canadian society has evolved and continues to evolve.

Moreover, the judge stated that Parliament does NOT have the jurisdiction to change the definition of marriage. This is due to the fact that S.91(26) of the Constitution Act of 1867 (the British North America Act [BNA]), gave the federal government jurisdiction over marriage and divorce as it was understood and defined at the time of Confederation and Parliament cannot use its constitutional power for purposes of re-defining marriage contrary to the definition of marriage that existed under the BNA Act.

That is, as a result of the BNA Act, the understanding of marriage as a union between a man and a woman only, is a constitutional term, i.e., locked into the constitution, and it cannot be changed by attempting to redefine it by the courts or Parliament. To do so would stand the constitution on its head, as it would make the constitution subject to judges and Parliament. The constitution can only be changed by way of a constitutional amendment. In short, by attempting to re-define marriage, Parliament would be invalidly attempting to amend the Constitution by re-defining the legislative power given to the federal government under the Constitution. Further, marriage, as a federal power with legal meaning at confederation, is not subject to Charter (section 15) scrutiny, as one part of the Constitution (the Charter of Rights) may not be used to amend another part of the Constitution (the British North America Act).

At the end of his judgment, Mr. Justice Pitfield added, almost as an afterthought, that if he is in error about the constitutional implications of marriage not being subject to Charter scrutiny, that even so, the State had a genuine justification in giving preference and precedence to marriage, which is the core social and legal arrangement by which society endures. Thereby, he concluded that the equality section (section 15) of the Charter would be overruled by S.1 of the Charter, which provides that the provisions of the Charter may be infringed if it is just and reasonable to do so - which was in the judge's opinion, clearly justifiable in this case.

Media Reaction to BC Decision

Unless one actually read the 85-page decision by Mr. Justice Pitfield, one would not acquire an accurate understanding of the decision by reading an analysis of it in Canadian newspapers and other media.

The media turned the judgment on its head and for the most part made reference only to the last minor part of the judgment that stated that the discrimination again homosexuals in refusing them the right to marriage was discriminatory, but was found to be justified by the court. The newspapers mainly ignored the major part of the decision that any re-definition of marriage would require a constitutional amendment and that same-sex unions can never be equated to traditional opposite-sex marriage. The newspapers also quoted at length from the petitioners challenging the law and their lawyers and the homosexual lobby group, EGALE. With only rare exception, the media did not bother to obtain a comment from any of the pro-family interveners, even though all distributed press releases on the decision.

This obvious manipulation of the court's decision by the media is most alarming. Professional journalistic standards of objectivity and honesty in reporting were completely absent. Can one trust the media in Canada? The answer is no.

Ontario Same-Sex Challenge-November 5, 2001

Having lost their legal challenge in B.C, lawyer for the eight homosexual and lesbian petitioners in Ontario were determined to make a legal come-back in Ontario. The courtroom at Osgoode Hall was nearly half filled with the lawyers (8 male, 14 female). Some of them, of course, consisted of our own legal team, as well as the legal team for the federal Attorney General, as well as the Ontario Attorney General. The latter's contribution to the challenge consisted only of stating that the same-sex marriage was a matter of federal, not provincial jurisdiction. Although this was quite true, it seems only reasonable that the Ontario Attorney General in a Conservative government would, at least defend the traditional understanding of marriage as being a union between a man and woman only. He did not do so. In contrast, the BC Attorney General had at least argued in the BC case that marriage was a union between a man and woman.

The judges in the Ontario case are not known as ideological activists, but this does not mean that they do not have their own agenda. The judges were Chief Justice Heather Smith and Justices Robert Blair and Harry LaForme.

Five days had been set aside for the hearing - November 5 to November 9. The first two days were taken up by the lawyers for the petitioners, the Toronto Homosexual Metropolitan Community Church (its Minister Reverend Brent Hawkes, in a publicity stunt, "married" homosexual couples in January 2001), and homosexual lobby Equality for Gays and Lesbians Everywhere (EGALE). During their arguments, their lawyers openly ridiculed our pro-family position as being laughable, rigid, out-dated legal reasoning not fit for presentation before today's courts. They also, on several occasions, in an unprecedented fashion, stood up to contradict the federal Attorney General during her presentation, and one of the homosexual petitioners' lawyers even addressed the judges sitting down, not standing, as required. The judges made no objection to their unorthodox court behaviour.

The federal Attorney General argued her 100-page factum for 1½ days. During her presentation, she argued the historical and religious foundation of marriage as a pre-legal concept playing a foundational role in Canadian society. She also argued that the case was not an issue of discrimination in that the equality section (S.15) of the Charter did not apply, since the petitioners were seeking "status" and legal and social recognition of their relationships rather than "equality."

The Inter-Faith Coalition ably argued how same-sex marriage would contradict the views of the major world religions (most marriages in Canada are conducted in a religious ceremony).

Mr. David Brown of the Toronto law firm of Stikeman and Elliott centered his argument on the constitutional issue - that the definition of marriage was locked in at the time of Confederation and could be changed only by constitutional amendment. This argument was heavily disparaged by the homosexual activist lawyers, but this was the very argument that won the case for us in BC Significantly, no one else made this argument in the Ontario case.

The court's decision will not be handed down for several months.

Quebec - Same-Sex Marriage November 8, 2001

The Quebec challenge of the marriage law began in the Quebec Superior Court in Montreal, on November 8. The two interveners on behalf of traditional marriage were the Catholic Civil Rights League and the French Alliance of Protestants of Quebec.

REAL Women would have liked to intervene in Quebec, as well, but we simply could not stretch our finances to do so. This was a grave disappointment to us, especially since modern Quebec is notoriously anti-clerical. Having only religious groups intervening in defence of traditional marriage, but no pro-family groups was very unfortunate. Hopefully, we will somehow find the funds to do so when this case is appealed to the Quebec Court of Appeal.

The homosexual petitioners, Michael Hendricks and Rene Le Boeuf were supported by an intervener which was a coalition of an assortment of homosexual/lesbian groups, unions and professors and the homosexual group, EGALE.

The Quebec challenge was based on the Charter (S. 15) equality section as well as Article 365 of the Quebec Civil Code (which was amended only last year), which defines marriage as consisting of only members of the opposite sex.

The lawyer for the pro-family interveners is Robert Reynolds, a member of the Christian Legal Fellowship.

The Quebec case has just commenced as this article is being written. We will, however, provide you with further details in the next issue of REALity.

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