Assertion, unsupported by fact, is nugatory. Surmise and general abuse, in however elegant language, ought not to pass for truth. Junius

2004/12/13

The Unanswered Fourth Question

The full text of the 9 December 2004 Supreme Court reference is now online. The most controversial aspect of the Court's decision may well turn out to be the fourth question, which the court declined to answer. The fourth question, of course, was the one added by the Martin government as kind of ministerial escape hatch just prior to the federal election. It read

4. Is the opposite-sex requirement for marriage for civil purposes, as established by the common law and set out for Quebec in section 5 of the Federal Law-Civil Law Harmonization Act, No. 1, consistent with the Canadian Charter of Rights and Freedoms? If not,in what particular or particulars and to what extent?

The Court gave three reasons for not answering this question. The learned Justices said:

In sum, a unique combination of factors is at play in Question 4. The government has stated its intention to address the issue of same-sex marriage by introducing legislation regardless of our opinion on this question. The parties to previous litigation have relied upon the finality of their judgments and have acquired rights which in our view are entitled to protection.Finally, an answer to Question 4 would not only fail to ensure uniformity of the law, but might undermine it. These circumstances, weighed against the hypothetical benefit Parliament might derive from an answer, convince the Court
that it should exercise its discretion not to answer Question 4. (Emphasis added.)

When all is said and done, it may well be the second reason that might cause the most problems for supporters of the legislation. The argument is essentially that the petitioners in the provincial court rulings have already gained rights the Court thought it inadvisable to remove:


The second consideration is that the parties to previous litigation have now relied upon the finality of the judgments they obtained through the court process. In the circumstances, their vested rights outweigh any benefit accruing from an answer to Question 4 . . . There is no compelling basis for jeopardizing acquired rights, which would be a potential outcome of answering
Question 4.

The implication of this is a bit startling. One reading of this might suggest that if the Court had ruled on Question 4, it would have ruled in the affirmative, that is, that the traditional definition of marriage was valid under the Charter. It dodged the bullet by affirming that rights already acquired are ultimately more important. But in a field where every word is parsed for meaning, the modifer "potential" will be pondered. Was there some impetus from within the Court to rule in the affirmative?

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