Friday started a little more relaxedly for the EFC team as our oral arguments were behind us. We had a lengthy breakfast over easy conversation to reflect on the previous day, before gowning up and heading to the courthouse.
The courtroom full again, and at some points was standing room only for a second day. Several members of the press also returned to continue coverage of the hearing.
(Again, this summary of arguments is not exhaustive. To include a fuller account of arguments would take far more space than this short blog permits. I’ve tried to focus on one or two key arguments for each party.)
First up on day 2 was Janice Gingell on behalf of the Saskatchewan Human Rights Commission. Ms. Gingell argued that, for same-sex couples, it would be more difficult for them than to simply make an additional phone call to a non-declining marriage commissioner. She stated there may be costs associated, notably for those who lived in northern Saskatchewan. She also argued that given the broad definition of religious freedom provided for by the Supreme Court of Canada in the Amselem decision, that there could be as many forms of religious beliefs, and subsequently grounds of potential discrimination, as there are marriage commissioners. Also, when asked by the court if a ‘single entry system’ could potentially satisfy the issue of potential discrimination faced by same-sex couples, cautious in her wording, she noted that it may be technologically possible and it’s to the responsibility of each employer to accommodate their employees to the point of undue hardship.
The previous day, one of the judges had asked several parties, such as EGALE Canada Inc., if a ‘single entry system’ could potentially resolve this issue. By ‘single entry system’, he meant a system similar to that of Ontario, where a couple seeking marriage solemnization contacts the government and requests the service. The government locates a commissioner that can meet their needs and connects them.
In this situation, for example, a same-sex couple would never know if there had been a marriage commissioner who was not able to perform same-sex marriage due to religious or conscience beliefs. There is an internal system in place that matches commissioner with couple, without the couple ever having to deal with a potential refusal. One judge even suggested that this could be done via a website form, where marriage applicants could fill in their personal information (names, sex of parties, date of proposed marriage, etc.) and be automatically paired with the appropriate marriage commissioner. There was some discussion as to whether such a system would best be implemented by legislation, regulations or government policies and practices.
The Canada Civil Liberties Association followed, represented by Merrilee Rasmussen. Ms. Rasmussen stated that the Charter of Rights and Freedoms applies to marriage commissioners as they are government officials who derive their authority from the state. Further, by clearly opting out of the Saskatchewan Human Rights Code, the government is itself implying that the proposed legislation doesn’t mean the Code protections.
Representing a multi-group coalition, including the Saskatchewan Federation of Labour, Solidarity and Pride, Larry Kowalchuk was next. Mr. Kowalchuck explained his clients’ perspective that the Reference is not about marriage commissioners’ rights or non-rights, but rather it is about how the Saskatchewan government is attempting to rollback the rights afforded to same-sex couples by common law. When dealing with the Charter analysis of the legislation, notably the subsection dealing with minimal impairment, he asked how one could minimally impairment same-sex couples’ rights. He also stated the position that this was an “insidious attempt to use the guise of a small group of people to allow discrimination to continue further.”
And finally, Mike Megaw, Counsel Appointed to Argue in Favour of the Proposed Legislation, was on his feet again with the procedural right to respond to what had been said since his opening presentation on day 1. Mr. Megaw explained that under the Marriage Act, “marriage is marriage” and there is no difference between a solemnization completed by a member of the clergy or by a marriage commissioner. He also stated that though he believes the proposed legislation known as Schedule B is still valid, the “single entry point” system could also be minimally impairing to same-sex couples seeking marriage services. He stated that it is to the responsibility of the government to set up an appropriate system.
The Court of Appeal has reserved its decision, which means that it may be several months before a written decision is released to the participants and the public.