Court of Appeal for Ontario - Egale · hedy halpern and colleen rogers, michael leshner and michael...
Transcript of Court of Appeal for Ontario - Egale · hedy halpern and colleen rogers, michael leshner and michael...
Court of Appeal File No. C39172
Court of Appeal File No. C39174
Court of Appeal for Ontario
BETWEEN:
HEDY HALPERN and COLLEEN ROGERS,
MICHAEL LESHNER and MICHAEL STARK,
MICHELLE BRADSHAW and REBEKAH ROONEY,
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 in Appeal)
-and-
THE ATTORNEY GENERAL OF CANADA
THE ATTORNEY GENERAL OF ONTARIO, and
NOVINA WONG, THE CLERK OF THE CITY OF TORONTO
Respondents
(Appellant)
-and-
EGALE CANADA INC.,
METROPOLITAN COMMUNITY CHURCH OF TORONTO,
THE INTERFAITH COALITION ON MARRIAGE AND FAMILY, and
THE ASSOCIATION FOR MARRIAGE AND THE FAMILY IN ONTARIO
Interveners
-AND-
BETWEEN:
METROPOLITAN COMMUNITY CHURCH OF TORONTO
Applicant
(Respondent in Appeal)
-and-
THE ATTORNEY GENERAL OF CANADA,
THE ATTORNEY GENERAL OF ONTARIO
Respondents
(Appellant)
-and-
HEDY HALPERN and COLLEEN ROGERS,
MICHAEL LESHNER and MICHAEL STARK,
MICHELLE BRADSHAW and REBEKAH ROONEY,
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
EGALE CANADA Inc.,
THE INTERFAITH COALITION ON MARRIAGE AND THE FAMILY, and
THE ASSOCIATION FOR MARRIAGE AND THE FAMILY IN ONTARIO
Interveners
-AND-
BETWEEN:
METROPOLITAN COMMUNITY CHURCH OF TORONTO
Applicant
(Appellant by
Cross-Appeal)
-and-
THE ATTORNEY GENERAL OF CANADA
Respondent
(Respondent
by Cross-Appeal)
THE ATTORNEY GENERAL OF ONTARIO
Respondent
(Respondent by Cross-Appeal)
-AND-
BETWEEN:
HEDY HALPERN and COLLEEN ROGERS,
MICHAEL LESHNER and MICHAEL STARK,
MICHELLE BRADSHAW and REBEKAH ROONEY,
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
(Appellants by Cross-Appeal )
-and-
THE ATTORNEY GENERAL OF CANADA
THE ATTORNEY GENERAL OF ONTARIO, and
NOVINA WONG, THE CLERK OF THE CITY OF TORONTO
Respondents
(Respondents by Cross-Appeal)
-and-
EGALE CANADA INC.,
METROPOLITAN COMMUNITY CHURCH OF TORONTO,
THE INTERFAITH COALITION ON MARRIAGE AND FAMILY, and
THE ASSOCIATION FOR MARRIAGE AND THE FAMILY IN ONTARIO
Interveners
FACTUM OF THE CANADIAN HUMAN RIGHTS COMMISSION
Statement of Facts Relied on by the Commission
1. The Commission relies on the facts as they are set out in the affidavit of Richard Tardif,
sworn February 14, 2003:
1. The Commission was created by a 1977 Act of Parliament, and began its work
one year later when it opened its doors in 1978.
2. The Commission commented on the issue of sexual orientation discrimination in
its annual report of 1979. In 1979, the Commission hired a consultant to prepare a
report which recommended the addition of sexual orientation as a prohibited
ground of discrimination in the Canadian Human Rights Act (“Act”).
3. The Commission is responsible for the administration of and the promotion of the
objectives of the Act. The purpose of the Act is to:
“...extend the laws in Canada, to give effect, within the purview of
matters coming within the legislative authority of Parliament, to
the principle that all individuals should have an opportunity equal
with other individuals to make for themselves the lives that they
are able and wish to have and to have their needs accommodated,
consistent with their duties and obligations as members of society,
without being hindered in or prevented from doing so by
discriminatory practices based on race, national or ethnic origin,
colour, religion, age, sex, sexual orientation, marital status, family
status, disability or conviction for an offence for which a pardon
has been granted.”
4. The Commission is a public interest body working to further equality
in Canada and to eradicate discrimination. The Commission has
developed expertise in evaluating equality rights claims, assessing the
impact of exclusionary acts on the dignity of an individual and
assessing the justifications which are proferred for exclusionary rules.
5. The Commission carries out a conventional complaints-processing
function, but it also promotes awareness of and tries to eliminate
discriminatory practices and attitudes through a variety of other tools.
Generally, the Commission is mandated to try by “persuasion,
publicity or any other means that it considers appropriate to discourage
and reduce discriminatory practices”, but it is also empowered to
“...review any regulations, rules, orders, by-laws and other
instruments...and comment on any provision thereof that in its opinion
is inconsistent with the (above-stated) principle”; “...conduct
information programs to foster public understanding...”; “...undertake
or sponsor research programs...”; “...carry out studies concerning
human rights and freedoms...”, and issue annual and special reports.
6. The Commission uses these tools to promote equality and to combat
discrimination against Canadians on any and all of the prohibited
grounds. The Commission has conducted policy-oriented
investigations of suspected incidences of systemic discrimination,
issued special studies and reports, drafted policies, commented on
legislation in its annual reports, conducted information seminars and
made speeches and presentations. The Commission’s objectives and
routine work include not only the prevention and eradication of
discriminatory behaviour, but also the contextual identification of
exclusionary rules as discriminatory, and the assessment of whether the
grant of rights to one group constitutes infringements of the rights of
others.
7. The Commission regards the purpose of the Act as empowering the
organization with a broad mandate to inform, educate and at times,
challenge the federal government to legislate in a manner which is
consistent with the purpose of the Act even if the subject matter of the
legislation does not fall directly within the jurisdiction of the
Commission’s complaint processing function.
8. The Commission urged Parliament, since its inception, to include
sexual orientation as a prohibited ground of discrimination under the
Act, and did so by way of its Annual Reports, and by other public and
parliamentary committee pronouncements. Sexual orientation was
added to the list of prohibited grounds of discrimination in 1996.
Since that time, the Commission has been accepting, investigating,
mediating and litigating complaints of discrimination on the ground of
sexual orientation. Prior to 1996, the Commission attempted to address
sexual orientation discrimination through the grounds of marital and
family status.
9. In addition the Commission provided advice to the Federal
Government on Bill C23, now the Modernization of Benefits and
Obligations Act, (2000) c.12. The Commission appeared before the
Standing Committee on Justice and Human Rights on March 21,
2000 and before the Senate Standing Committee on Legal and
Constitutional Affairs on May 21, 2000.
10. The Commission will appear before the Parliamentary Standing
Committee on Justice and Human Rights as they conduct public
hearings into the issue of same-sex marriage. The Commission will
encourage the federal government to ensure that same-sex couples
have the capacity to marry, which is, in the Commission’s view, the
only option which is consistent with human rights principles including
the Charter.
11. The Commission has been granted leave to intervene in appeals, in
particular in those cases in which discrimination on the basis of sexual
orientation was at issue. For example, the Commission intervened in
Haig v. Canada (1992), 9 O.R.(3d) 495 (C.A.), Vriend et al. v. The
Queen in right of Alberta (1996), 141 D.L.R. (4th
) 44, Vriend v.
Alberta, [1998] 1 S.C.R. 493 and Egan v. Canada (A.G.), [1995] 2
S.C.R. 513.
12. In its 2001 Annual Report, the Commission commented on the right of
same-sex couples to access to civil marriage. It cited, with agreement,
the finding of the Law Commission of Canada that “there is no
justification for maintaining the current distinctions between same-sex
and heterosexual conjugal unions... If governments are to continue to
maintain an institution called marriage, they cannot do so in a
discriminatory fashion.”
13. The Commission also stated that it:
“...recognizes and respects that for many, marriage is a sensitive
issue bound with deeply felt religious beliefs and cultural
practices. It is, nevertheless, also a reality that there are many
gay and lesbian Canadians living today in long-term committed
relationships, caring for each other, and raising families together.
They are entitled to respect and dignity and should be afforded the
same recognition in law as opposite-sex couples.”
Annual Report 2001, p. 19, Exhibit B.
14. The Commission has considerable expertise in analyzing issues of
discrimination, in identifying both express and more subtle forms of
discrimination, in contextualizing practices and rules that may not
appear on their face to be discriminatory, in deconstructing
explanations for discriminatory rules, in exposing and combatting
prejudice, and in promoting awareness and understanding of
discrimination. The Commission also has much experience in
evaluating cases which raise or which appear to raise issues of
competing rights, including in determining whether the grant of rights
to one individual or group has the effect of infringing the rights of
others, or whether the grant of rights is only in opposition to the beliefs
or tenets of another individual or group.
15. The Commission similarly has expertise in understanding the historical
disadvantages that same-sex couples have suffered, and in assessing
the legitimacy and proportionality of rules which exclude same-sex
couples from societal institutions.
16. The factum of the Attorney General of Canada makes reference to the
“clear and unequivocal intention of Parliament” with respect to the
definition of marriage which can be drawn by necessary implication
from the terms of statutes related to marriage. The factum does not
include any reference to the Act and Parliament’s express legislative
intention with respect to discrimination on the basis of sexual
orientation, marital status and family status.
17. If the Commission is granted intervenor status in these appeals,
the position of the Commission will be:
1. To the extent that these appeals engage the constitutional
authority of the federal government to define capacity to marry,
it is consistent with the values embodied in the Act and the
Charter and the trend in human rights jurisprudence toward
inclusivenss and diversity, to ensure that same-sex couples
have the capacity to marry.
2. That the Divisional Court was correct in finding a violation of
section 15 which could not be saved by section 1. That the
Divisional Court erred in dismissing the application of the
Metropolitan Community Church of Toronto. That the
Divisional Court erred in not ordering the immediate issuance
of marriage licenses to the respondent couples and the
immediate registration of the marriages performed by the
Metropolitan Community Church of Toronto.
3. That it will be helpful to the Court in conducting a contextual
analysis of the issues engaged by the appeals to consider the
full context in which these appeals arise. There is on the
appellants side, for example, considerable focus on the
historical, sociological, religious and anthropological role of
marriage in fostering and protecting heterosexual unions. The
full context of this case includes an examination of the human
rights protections for same-sex couples which have evolved
toward inclusiveness and diversity.
4. The full context of this case also includes the Canadian Human
Rights Act, which, like the Charter, is an important
expression of Parliament’s commitment to human rights and to
eradicating discrimination on the basis of sexual orientation,
marital status and family status. There is no equivalent
legislative expression on the part of Parliament on the subject
of same-sex marriage and this factor is important in any
assessment of Parliament’s intention with respect to same-sex
marriage.
5. The Commission is non-partisan and experienced in balancing
rights based on sexual orientation and religious discrimination.
On the issue of sexual orientation discrimination, there is no
“balancing” required between the “rights” of those who wish to
preclude same-sex couples from marrying on the basis of
committed religious beliefs and “rights” of those who are
currently being denied marriage licenses.
6. On the issue of religious discrimination, only the rights of the
Metropolitan Community Church of Toronto are engaged by
these appeals. There is no “balancing” required. These appeals
do not engage the question whether individual clergy or
congregations who oppose same-sex marriage will be forced to
perform same-sex marriages. However, the performance of
same-sex marriages is an important aspect of the Appellant’s
faith, and those marriages should be registered just as they are
for other religious groups.
7. That any justification premised on the express desire to
maintain a “tradition” of excluding same-sex couples from
marriage is a discriminatory justification.
8. The only remedy consistent with the principles developed in
the human rights context, including the Charter, is one which
rejects the “separate but equal” doctrine and provides full
recognition of same-sex marriage.
9. In addition, it is inconsistent with human rights principles
including the Charter and the values embodied in the Act to
suspend the remedy and allow the discriminatory practices
which are the subject of these appeals to persist.
18. If the Commission is granted intervenor status, the Commission will
not seek to adduce new evidence, will not repeat the submissions of
the other parties and intervenors, will file a factum by March 13, 2002
consistent with the prior agreement of the parties for the filing of
factums, will limit its oral submissions to 15 minutes and will not
seek costs or seek to delay the hearing of the appeals in any way.
Statement of the Law Relied on by the Commission
Rules
1. The Commission’s intervenor application was commenced pursuant to the
following Rules:
13.02 Any person may, with leave of a judge or at the invitation of the
presiding judge or master, and without becoming a party to the proceeding,
intervene as a friend of the court for the purpose of rendering assistance to the
court by way of argument.
13.03 (2) Leave to intervene as an added party or as a friend of the court in the
Court of Appeal may be granted by a panel of the court, the Chief Justice of
Ontario or the Associate Chief Justice of Ontario.
Ontario Rules of Civil Procedure, Rule 13.02, 13.03(2), Tab 11 Commission
Book of Authorities.
Onus
2. The onus rests on the proposed intervenor to establish that it has met the
requirements of the rule and should therefore be permitted to intervene in the
proceeding.
Halpern v. Toronto (City) Clerk, 51 O.R. 3d, 742, [2000] O.J. No. 4514, Tab 6
Commission Book of Authorities, paragraph 6.
Test for Intervenor Status
3. Factors to be considered on a motion to intervene as a friend of the court are
the nature of the case, the issues which arise and the likelihood of the
applicant being able to make a useful contribution to the resolution of the
appeal without causing injustice to the immediate parties.
Peel (Regional Municipality) v. Great Atlantic & Pacific Co. Of Canada Ltd,
(1990), 74 O.R. (2d) 164, Tab 1 Commission Book of Authorities, page 3
4. In constitutional cases, including cases under the Charter, there has been a
relaxation of the rules governing applications for leave to intervene and an
increase in the desirability of permitting intervention because the judgments in
these cases have a great impact on others who are not immediate parties. This
approach ensures that the court will have the benefit of various
perspectives of the historical and sociological context, as well as policy
and other considerations that bear on the validity of legislation.
Peel, supra, Tab 1 Commission Book of Authorities, page 3
Authorson (Litigation guardian of) v. Canada (Attorney General), [2001]
O.J. No. 276 , Tab 8 Commission Book of Authorities,
paragraph 7.
Adler v. Ontario (1992), 8 O.R. (3d) 200, Tab 2 Commission Book of
Authorities, page 6.
5. Where intervenor status is granted to a public interest group, either as
a party or as a friend of the court, at least one of the following criteria
is usually met:
(a)
the intervenor has a real, substantial and identifiable interest in the
subject matter of the proceedings;
(b)
the intervenor has an important perspective distinct from the
immediate parties; or
(c)
the intervenor is a well recognized group with a special expertise and
with a broad identifiable membership base.
Ontario (Attorney General) v. Dieleman (1993), 16 O.R. (3d) 32, Tab 4
Commission Book of Authorities, page 5.
6. In Mossop, LaForest J., commented on the role of the Canadian Human Rights
Commission:
“The Human Rights Commission undoubtedly serves many useful
functions that help to educate, inform and advise the government, the
public and the courts on matters of human rights”.
Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, Tab 3
Commission Book of Authorities, page 584.
7. In her dissent in Mossop, L’Heureux-Dubè J. commented on the role of the
Canadian Human Rights Commission:
“As for the Commission itself, Parliament unquestionably intended to
create a highly specialized administrative body, one with sufficient
expertise to review Acts of Parliament and, as specifically provided for
in the Act, to offer advice and make recommendations to the (Minister)
of Justice. In the exercise of its powers and functions, the Commission
would inevitably accumulate expertise and specialized understanding
of human rights issues, as well as a body of governing jurisprudence.
The work of the Commission and its tribunals involves consideration
and balancing of a variety of social needs and goals, and requires
sensitivity, understanding, and expertise.”
Mossop, supra, Tab 3 of the Commission Book of Authorities, page 609.
8. The concept of “separate but equal” treatment, which was challenged by the
Commission in Moore was adopted by the Divisional Court in Halpern in
rejecting the argument of the Attorney General of Canada that the benefits
afforded through the institution of marriage can be remedied by amendment to
the legislation that otherwise grants benefits to co-habiting couples.
Halpern v. Canada (Attorney General) (2002), 60 O.R. (3d) 321, Tab 12
Commission Book of Authorities
Canada (Attorney General) v. Moore, [1998] 4 F.C. 585, Tab 5 Commission
Book of Authorities
9. There are currently two other same-sex marriage cases before courts of appeal
in British Columbia (EGALE Canada Inc. v. Canada (Attorney General))and
Quebec (Hendricks). The Commission was refused intervener status in
EGALE Canada Inc. v. Canada (Attorney General) and granted intervener
status in Hendricks
EGALE Canada Inc. v. Canada (Attorney General), [2002] B.C.J. No. 2957,
Tab 9 Commission Book of Authorities.
Procureur général du Canada c. Hendricks, [2003] J.Q. no. 343; Ligue
catholique pour les droits de l’homme c. Hendricks, [2003] J.Q. no. 344, Tab
10 Commission Book of Authorities.
10 It is true that the intervention will expand the number of submissions that the
responding party will be obliged to reply to but this, which is for the potential
benefit of the court, is not an injustice.
Louie v. Lastman (2001), 208 D.L.R. (4th
) 380, Tab 8 Commission Book of
Authorities.
All of which is respectfully submitted this 14th
day of February, 2003.
Leslie A. Reaume
Andrea Wright
Solicitors for the Canadian Human Rights Commission