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REAL WOMEN OF CANADA SEEKS LEAVE TO APPEAL
TO SUPREME COURT ON SAME-SEX MARRIAGE
REAL Women, as part of the Association for
Marriage and the Family, which includes Focus on the Family
and Canada Family Action Coalition (CFAC), held a press conference
in Ottawa on July 7, 2003, announcing its intention to apply
for Leave to Appeal to the Supreme Court of Canada from the
Ontario Court of Appeal decision on same-sex marriage.
Our organization was given "party intervenor" status
in the Ontario courts, which gave us the same rights as the
main parties to the litigation, including the right to call
evidence. As such, we were much more than mere intervenors
or "friends of the court." The Ontario Appeal Court
did not impose any limits on our right as party intervenors
to appeal the decision to a higher court. Given the importance
of this case, REAL Women and the other members in the association,
believe it is appropriate for the Supreme Court to hear the
case in full.
Our association is also seeking a stay or
postponement of the decision of the Ontario Court of Appeal
because the decision of the BC and Ontario Courts of Appeal,
which state that same-sex marriage should be immediately effective,
has created total confusion and inequality across the country.
What about the other eight provinces, for which BC and Ontario
court decisions do not apply? What do they do?
By the government's failure to appeal the
Ontario decision, all of Canada is now bound by the decision
of three Ontario judges. There are eight other provinces whose
appeal courts, consisting altogether of approximately 200
appeal judges, have not spoken on the issue. As a result,
because of judicial activism, the law on marriage in Canada
is being unequally and unfairly applied all across the country,
and is in a state of confusion.
The Interfaith Coalition, which includes the
Evangelical Fellowship of Canada, the Catholic Civil Rights
League, the Islamic Society of North America and the Ontario
Conference of Catholic Bishops, was also given party intervenor
status in this case. The Interfaith Coalition is also making
a separate application for Leave to Appeal to the Supreme
Court of Canada.
The Supreme Court need not grant Leave to
Appeal: it is a discretionary decision only. Whatever our
chances, REAL Women believes that we must do everything possible
in this difficult situation. Hence, our decision to take advantage
of this small window of opportunity that is open for us. According
to the Canadian Press, the Supreme Court of Canada will hear
our application to appeal shortly, even though the Court will
not be formally sitting until October.
It is unfortunate, however, that the courts
were the venue for action, rather than Parliament which is
supposed to represent the people. Proceeding through the courts
was not a process initiated by us, but by others. We would
not have chosen that route. However, the process, once begun,
has taken on a life of its own. The effect is that Parliament
and the nation-wide House of Commons Justice Committee hearings
have been cut out of the picture. It is a tragedy that the
public has not been included in this momentous decision. This
is dangerous for democracy and for Canada's future.
It is also unfortunate that the government
has chosen to go by way of Reference to the Supreme Court
rather than by way of an Appeal, as a Reference does not in
any way allow for an adequate review of the issue. A Reference
is merely a series of questions drafted by Justice Department
officials. As a result, it is a very limited action since
the questions are drafted with the bias of the Justice officials
and the Court must answer with a "yes" or "no"
response. With this legal manoeuvre, the Supreme Court of
Canada will not be able to hear or address the fundamental
arguments on both sides of the issue, and instead it will
simply provide clarification only as to how the law should
be implemented. Also, very importantly, a Reference is not
binding on a government, but is only advisory. A Reference
is only an extremely narrow, one-sided approach to deal with
this issue. It leaves the decision on same-sex marriage to
the courts and lets them instruct Parliament on how to change
the law. The three reference questions are:
- Does the federal Parliament have exclusive
authority over marriage? (This question is to undermine
Alberta Premier, Ralph Klein's passage of the notwithstanding
clause on marriage, which Mr. Klein intends to implement.)
- Are same-sex marriages consistent with
the Charter?
- Are religious officials protected from
performing same-sex marriages contrary to their religious
beliefs?
These questions, however, do not address the
central question to this issue - namely, "Is the traditional
definition of marriage valid under the Charter?" This
is the issue that has to be studied in depth. The House of
Commons Justice Committee tried to do just that, but the manoeuvering
by the Ontario Court of Appeal and the Liberal Government
has prevented this from being completed. What a tragedy for
Canada and for democracy.
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