Request for Delay in Supreme Court Reference

January 29, 2004 – The Catholic Civil Rights League treats the government’s request to add a new question to the proposed reference to the Supreme Court of Canada with a measure of both appreciation and disappointment. Justice Minister Irwin Cotler has decided to add a fourth question to the reference, i.e. does the traditional definition of marriage, that is the union of a man and woman, infringe the constitution.

In fact, the CCRL sought to do this very thing when it sought leave to appeal the Ontario Court of Appeal decision last year, as part of the Interfaith Coalition for Marriage. Our coalition included the Ontario Bishops, the Evangelical Fellowship of Canada and the Islamic Society of North America. A separate application challenging the decision had also been filed by Focus on the Family and REAL Women.

Those applications were thrown out by a five member panel of the Supreme Court on October 8, 2003, without reasons, at the request of the federal government and the couples involved. At the time the government argued that our groups would interfere with the proposed reference. In particular, we submitted that a complete court record was available and that the government’s existing reference application failed to raise the most important question as to whether the traditional definition of marriage was unconstitutional. That appeal, if allowed, would have been argued with all of the affected parties involved by this spring. Moreover, the particular issue of the merits of having courts impose substantial changes to the fabric of Canadian society would have been before the court.

Although the Supreme Court acknowledged its jurisdiction to grant leave for this appeal, it decided to quash our application. We noted at the time that this procedural decision, unlike other substantial court decisions, was not imposed by the Charter, but was based on the court’s meek acceptance of the government’s determination to have its reference proceed on the government’s terms.

In a flip flop from its previous approach, it now appears the government has accepted our submissions and wants the Supreme Court to hear arguments on these issues after all. However, there will be a real difference in that the court will have no ability to overrule the previous court decisions from Ontario and British Columbia which we had sought.

The Minister of Justice, in announcing this additional question, reaffirmed the government’s support for same sex marriage, stating: “This is unwavering. I reiterate it today.”

Prime Minister Paul Martin expects Canadians will not see through the exercise. He stated: “This is not an attempt to delay. This is an attempt to make sure that the fundamental question is on the table (and) Parliament, which must make the final decision, has all the facts at its disposal.”

Does Paul Martin really believe we are that gullible? Their new approach is insulting to the groups who sought to have the Supreme Court address the very issue he now wishes to raise. The portrayal of this new question as a further consultation exercise is unacceptable, especially in view of the government’s commitment to change the law. Canadians will not allow the government to avoid the issue in the upcoming federal election.

It is clear that the government’s position is a reaction to recent polling data showing a significant majority of Canadians believe that the traditional definition of marriage should be retained. As we have advocated previously, Canadians have an opportunity to give a direct message to the courts and politicians on this most important issue.

For our part, we will only support candidates who commit to constitutional protection of the traditional definition of marriage, and who will take active steps to secure that protection.


For more information contact: Philip Horgan, Vice-President
tel: 416-466-8244, fax 416-466-0091, email:

Catholic Civil Rights League assists in creating conditions within which Catholic teachings can be better understood, cooperates with other organizations in defending civil rights in Canada, and opposes defamation and discrimination against Catholics on the basis of their beliefs. The Catholic Civil Rights League is a Canadian non-profit organization entirely supported by the generosity of its members.