Egale Canada



Court File No.29866

IN THE SUPREME COURT OF CANADA

IN THE MATTER OF Section 53 of the Supreme Court Act, R.S.C. 1985, Chap.S-26;

AND IN THE MATTER OF a Reference by the Governor in Council concerning the Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes, as set out in Order in Council P.C. 2003-1055, dated the 16 day of July 2003.

MEMORANDUM OF ARGUMENT

RE: MOTION FOR LEAVE TO INTERVENE

of Egale Canada Inc., and

Melinda Roy, Tanya Chambers, David Shortt, Shane McCloskey,

Lloyd Thornhill, Robert Peacock, Robin Roberts, Diana Denny,

Wendy Young and Mary Teresa Healy (the “Egale Couples”)

Cynthia Petersen Pam MacEachern

SACK GOLDBLATT MITCHELL NELLIGAN O'BRIEN PAYNE

20 Dundas Street West, Suite 1130 66 Slater, Suite 1900

Toronto, Ontario Ottawa, Ontario

M5G 2G8 K1P 5H1

(tel) 416-979-6440 (tel) 613-231-8276

(fax)416-591-7333 (fax)613-788-3681

(e) cynthiapetersen@ (e) pam.maceachern@nelligan.ca

Joseph Arvay

ARVAY FINLAY

888 Fort Street, 4th Floor

Victoria, British Columbia

V8W 1H8

Counsel for the Proposed Interveners Ottawa Agent for the Proposed Interveners

Egale Canada Inc. and the Egale Couples Egale Canada Inc. and the Egale Couples

PART I - THE FACTS

1. The Moving Party Egale Canada Inc. (hereafter “Egale”) is this country’s only national organization that advocates equality and justice for lesbians, gays, bisexuals and transgendered people (hereafter “LGBTs”) and their families.

Affidavit of Ian Laurie Arron, paras.

2. The Moving Parties Roy and Chambers, Shortt and McCloskey, Thornhill and Peacock, Roberts and Denny, and Young and Healy (hereafter the “Egale Couples”) are five same-sex couples, each of whom was denied a marriage licence by the British Columbia Director of Vital Statistics in the year 2000. Together with Egale, they commenced a legal action in British Columbia which ultimately resulted in Court of Appeal orders and declarations securing freedom to marry for same-sex couples (hereafter “Egale v. Canada”). As a consequence, lesbian and gay couples are now permitted to marry in British Columbia. Two of the Egale couples have married and the others have made or are making wedding plans.

EGALE Canada Inc. v. Canada (Attorney General) (2003), 225 D.L.R. (4th) 472 (B.C.C.A.) and EGALE Canada Inc. v. Canada (Attorney General), 2003 BCCA 406; Affidavit of Ian Laurie Arron, paras.

3. For a number of years, Egale has engaged in a campaign to secure equal marriage rights for same-sex couples, including hosting national consultations, lobbying elected government representatives, researching and writing a Law Commission of Canada report, appearing before Parliamentary Committees, attending international conferences, organizing public awareness campaigns, and engaging in litigation (hereafter “the Equal Marriage Campaign”).

Affidavit of Ian Laurie Arron, paras.

4. In addition to commencing and pursuing Egale v. Canada in British Columbia, Egale was also actively involved in same-sex marriage litigation in two other provinces (hereafter “the trilogy”). In Ontario, Egale intervened and was granted standing as an “added party” in Halpern v. Canada. In Quebec, Egale intervened in coalition with other social justice organizations in Hendricks v. Quebec. In both cases, Egale contributed to the evidentiary record and participated in all aspects of the litigation, including making written and oral submissions to the Courts (both levels of Court in Ontario). Both cases resulted in, inter alia, Court declarations that restrictions against same-sex marriage are discriminatory and unconstitutional.

Affidavit of Ian Laurie Arron, paras. ; Halpern v. Canada (Attorney General) (2003), 225 D.L.R. (4th) 529 (O.C.A.); Hendricks v. Quebec (Procureur général), [2002] R.J.Q. 2506 (C.S.Q.)

5. The Attorney General of Canada (“AGC”) did not seek leave to appeal the British Columbia Court of Appeal and Ontario Court of Appeal decisions and abandoned his initial appeal of the Quebec decision.[1] He then released draft legislation which, if enacted, will extend capacity to marry to same-sex partners across Canada. The Governor General in Council has referred the proposed legislation to this Court for an opinion on three specific questions.

PART II - THE QUESTIONS IN ISSUE

6. The questions referred to this Court for hearing and consideration are as follows:

1. Is the Proposal for an Act respecting certain aspects of legal capacity for marriage for civil purposes within the exclusive legislative authority of the Parliament of Canada?

2. If the answer to question 1 is yes, is section 1 of the proposal, which extends capacity to marry to persons of the same sex, consistent with the Canadian Charter of Rights and Freedoms?

3. Does the freedom of religion guaranteed by paragraph 2(a) of the Canadian Charter of Rights and Freedoms protect religious officials from being compelled to perform a marriage between two persons of the same sex that is contrary to their religious beliefs.

7. If granted leave to intervene in this proceeding, Egale and the Egale Couples will take the position that all three questions should be answered affirmatively.

PART III - ARGUMENT

Our Unique Perspective and Interest in the Reference

8. Although Egale and the Egale Couples will take the same position as the AGC on the appropriate answers to the Reference questions, our participation in this Reference, if leave to intervene is granted, will not be duplicative. We will support and rely on the submissions of the AGC, but we have additional and different submissions to make, which we believe will be of assistance to the Court. Our approach to the issues raised by the Reference questions is different from the AGC because of our unique perspective, as described below.

9. The Egale Couples have a substantial and genuine interest in the within Reference, since the proposed legislation will have a direct impact on them and their families. They are either already married or are currently planning their weddings. The validity of their marriages, in every province and territory of Canada, is of tremendous personal importance to them. Although the AGC has adopted a policy in favour of same-sex marriage and will therefore be defending the validity of the proposed legislation in this proceeding, the AGC does not purport to represent and, indeed, cannot represent the specific interests or perspectives of the Egale Couples.

Affidavit of Ian Laurie Arron, paras.

10. In addition, we respectfully submit that a full consideration of the issues raised by this Reference requires the perspective of Egale, an organization with a thorough understanding of the diverse concerns of LGBTs across Canada. It is important that the evidence and submissions presented to the Court in this Reference be informed by this national perspective, which Egale, as an organization with 3000 members active in every province and territory of Canada, is in a unique position to advance. The AGC, who has carriage of the Reference, is not in a position to advance this perspective. Indeed, there is no other Canadian organization with Egale’s profile or mandate which could present this perspective to the Court.

Affidavit of Ian Laurie Arron, paras.

11. As a national organization, Egale is uniquely situated to advance the interests and perspectives of LGBTs who will not otherwise be represented by counsel in this proceeding. For example, Egale’s constituency includes LGBTs who reside in provinces that currently are not issuing marriage licences to same-sex partners and where no litigation has been commenced to challenge that discrimination; same-sex partners across the country who do not wish to get married but whose rights and freedoms are nevertheless infringed and curtailed by restrictions on their access to marriage as a relationship option; and individual LGBTs (and their families) who are harmed by the the negative message conveyed by the exclusion of same-sex couples from the legal institution of marriage. No other party can represent the perspectives of these affected individuals as effectively as Egale.

Affidavit of Ian Laurie Arron, paras.

12. In light of the critical importance of Egale’s involvement in the within proceeding, we are seeking leave to intervene in this Reference with terms of intervention that will enable us to participate meaningfully, beyond the usual limited role accorded to public interest interveners in private litigation: namely, we are seeking leave to file an extended factum of 30 pages in length, leave to file our factum after the opposing interveners have filed their factums (to enable us to respond to their arguments), leave to make oral submissions of 45 minutes duration at the hearing, leave to supplement the AGC’s record with additional affidavits (as particularized below), and an award of costs against the AGC.

Our Expertise

13. We believe that Egale’s submissions will be useful to the Court because of the considerable experience and expertise that Egale brings to the issues. Egale has had extensive involvement in constitutional litigation on LGBT issues, including involvement as an intervener in every LGBT case heard by the Supreme Court of Canada in the post-Charter era. Egale’s submissions have often been quoted and adopted by Justices of this Court and other Courts in their judgments.

See, for example, M. v. H., at paras.73, 92,123, and 127; Affidavit of Ian Laurie Arron, paras.

14. Furthermore, Egale has experience and expertise with respect to same-sex marriage in particular, which will also be of benefit to this Court. Egale has conducted research, litigation, and national consultations on legal issues relating to same-sex marriage. Among other things, Egale was awarded a contract by the Law Commission of Canada to research and write an 86 page report on jurisdictional issues related to marriage, which is directly relevant to the first question in the within Reference.

Affidavit of Ian Laurie Arron, paras.

15. With respect to the second and third questions in the Reference, Egale’s attendance at all of the Parliamentary Committee hearings on same-sex marriage provided Egale with insights into the concerns and views of those opposed to same-sex marriage for religious or other reasons. Egale developed position papers to respond to those concerns and adopted a formal policy supporting each religion's freedom to choose whether or not to marry same-sex couples in accordance with their religious convictions and the tenets of their faith.

16. Moreover, Egale has experience and expertise in addressing the intersection of the equality rights of LGBTs with the religious freedom, equality rights, and freedom of expression of groups opposing our equality claims. The proper balancing of these rights and freedoms was a central issue in a number of cases in which Egale intervened, including Mossop, Egan, Vriend, M.v.H., Trinity Western, Chamberlain, Brockie, and Hall, not to mention the same-sex marriage trilogy.

citations ..........................

17. As an active participant in all levels of Court in all three cases of the trilogy, Egale has researched in depth the legal issues raised by the questions in the Reference. Although the trilogy litigation included many issues that are not raised by the Reference questions, it also covered issues raised herein. Specifically, Egale has developed and refined arguments about the scope of Parliament’s jurisdiction under s.91(26) of the Constitution Act, 1867, the potential impact of same-sex marriage on the Charter rights and freedoms of parties opposed to same-sex marriage, and the scope of the protection afforded by s.2(a) of the Charter.

18. Through its involvement in the trilogy litigation, Egale also developed evidence that includes material relevant to the Reference questions. For example, our record in Egale v. Canada contains several expert affidavits from different religious leaders who provided evidence about, inter alia, the ways in which religious groups in Canada adapt to living in a pluralist society with secular laws that are inconsistent with the tenets of their faith. The record prepared by the AGC does not include any of these expert affidavits, nor any affidavits on this particular point. We submit that this Court would benefit in its deliberations from those portions of the lower Court records that relate to the Reference questions. For this reason, Egale is seeking an order from this Court that it be entitled to supplement the AGC’s record to include relevant materials from the trilogy litigation, as outlined in more detail below. We are not seeking leave to rely on the entire records from the Courts below, but rather only on those limited portions that relate to the Reference questions. We are not seeking leave to rely on any evidence that did not form part of a lower Court record in the trilogy litigation.

Our Anticipated Submissions

19. Without yet having had the benefit of reading the submissions of other interveners who will challenge the constitutionality of the proposed legislation and urge this Court to answer one or more of the Reference questions negatively, it is difficult to advise this Court precisely which submissions Egale and the Egale Couples will make, if we are granted leave to intervene. However, based on our familiarity with the concerns and views of those who have been opposing our Equal Marriage Campaign, we can advise of some anticipated submissions as follows.

20. With respect to the first question in the Reference, we expect that opposing interveners will argue that the term “marriage” had an accepted meaning in 1867, namely a union between a man and a woman, and that the inclusion of the term in the Constitution Act, 1867 gave it a fixed constitutional meaning, which underpinned the allocation of legislative powers over conjugal relationships. In the trilogy litigation, opponents of same-sex marriage argued that, under s.91(26) (“marriage and divorce”), Parliament received jurisdiction over heterosexual marriage only and, that under s.92(13) (“property and civil rights”), the provinces secured jurisdiction over the civil rights of non-marital relationships, including same-sex relationships. The thrust of their argument was that lesbian and gay relationships can only be legally recognized as a form of non-marital union under provincial legislation and that neither Parliament nor the Provincial legislatures can legislate with respect to same-sex marriage. According to this argument, the power to legislate with respect to same-sex marriage is currently non-existent and could only be acquired by one of the two levels of government by means of a constitutional amendment pursuant to s.38 of the Constitution Act, 1982.

21. Egale will submit that this argument is contrary to the fundamental principle of the exhaustiveness of the division of legislative powers, which holds that all conceivable legislative acts must fall within the jurisdiction of either the Federal Parliament or the Provincial Legislatures. Every matter -- whether existing at the time of Confederation, only now, or only in the future -- can be found within the legislative competence of one or other levels of Government. There are no gaps. Thus, even where a matter such as same-sex marriage appears to be “new” (i.e., not within the contemplation of the framers of the Constitution at the time of Confederation), it is not necessary to amend the Constitution Act, 1867 in order to establish the power to legislate in respect of the matter.

22. Furthermore, Egale will argue that a rigid and narrow (heterosexual) interpretation of the word “marriage” in s.91(26) of the Constitution Act, 1867 is inconsistent with well established principles of constitutional interpretation. Constitutional documents are unique because they cover a magnitude of subjects with only few words and although they are written at a particular historical moment, they are not easily amended, and are therefore intended to act as a permanent guide for the future conduct of governments. In light of these unique characteristics, Canadian courts have developed an interpretive approach that ensures the continuing relevance of constitutional documents to the governance of society without the necessity of resorting to the onerous processes of constitutional amendment. The heads of power enumerated in ss.91 and 92 must therefore be interpreted as referring to topics about which Parliament and the Legislatures can legislate, as opposed to descriptions that are determinative of the possible content of said legislation.

23. Moreover, as the AGC has noted in his factum, the interpretation of the topics in ss.91 and 92 (including the topic of “marriage”) must be done progressively, with a view to contemporary social realities and values. Egale is uniquely placed to address this Court on that point and, if granted leave to intervene, will make submissions on the evolving social reality of the lives of LGBTs across Canada.

24. In the context of advancing an appropriate “progressive” approach to constitutional interpretation, Egale will also make submissions about the evolution of the institution of marriage in Canada and its contemporary social reality. With the Court’s permission, Egale will rely on the expert affidavit of Professor Bettina Bradbury, a Canadian Historian who provided evidence in the Egale and Halpern cases on the historical transformations in the institution of marriage which have made gender irrelevant as a necessary basis for marriage. The record compiled by the AGC does not include any expert evidence on the history of marriage in Canada and we would ask that this Court therefore grant us leave to supplement the record with the Bradbury affidavit.

25. In arguing for a progressive and liberal interpretation of the word “marriage” in s.91(26) of the Constitution Act, 1867, the AGC relies upon the Privy Council’s celebrated statements in Edwards v. Canada that the Act “planted in Canada a living tree capable of growth and expansion within its natural limits.” We anticipate that opposing interveners will stress (as they did in the trilogy litigation) the “natural limits” referred to by Viscount Sankey in this famous quote, in support of an argument that the word “marriage” has inherent definitional boundaries which exclude same-sex couples. In response, Egale will argue that words are not fixed with inherent meaning but rather are invested with meaning through a process of social conditioning. The commonly accepted definitions of words (including the word “marriage” in s.91(26)) typically reflect the values and beliefs of dominant cultural groups, but the scope of their reference can be challenged by non-dominant groups and thereby expanded to become more inclusive. Egale will argue that a proper progressive approach to constitutional interpretation requires this Court to recognize that the purported heterosexual limits on the word “marriage” are not “natural” but rather are the product of a process of social (heterosexist) conditioning. Just as the word “citizen” in the United States Constitution - which was once interpreted judicially to exclude Black Americans - was able to adapt to accommodate a more inclusive racially-neutral definition, the word “marriage” in the Canadian Constitution can adapt - indeed, has already adapted - to accommodate a more inclusive gender-neutral definition. In making these arguments, Egale, with the Court’s permission, will rely on the affidavits of Dr. Susan Ehrlich, Professor of Linguistics, and Dr. Adèle Mercier, Professor of Philosophy specialized in the Philosophy of Language. The record compiled by the AGC does not include any expert evidence from linguists and we would ask that the Court grant us leave to supplement the record with these two affidavits.

26. With respect to the second question in the Reference, we will submit that the proposed legislation, which extends capacity to marry to same-sex couples, is entirely consistent with the values that this Court has consistently identified as underlying the Charter, namely respect for individual liberty and the inherent dignity of all people, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social institutions which enhance the participation of individuals and groups in society.

27. If permitted leave to intervene, we will argue that granting the right to marry to same-sex couples does not violate any of the rights and freedoms guaranteed by the Charter. We anticipate arguments from opposing interveners that their freedom of religion will be violated if marriage is extended to same-sex couples, notwithstanding that section 1 of the proposed legislation applies only to civil marriage and section 2 provides explicit protection for the right of religious leaders “to refuse to perform marriages that are not in accordance with their religious beliefs.” In the trilogy litigation, religious opponents to same-sex marriage argued that no “bright line” can he drawn between civil marriage and marriage before religious clergy, because of the intermeshing that exists between civil and religious authorities and because all citizens who live in our society share its civic institutions. They argued that, if same-sex civil marriage were legally recognized, the dissonance between secular marriage law and the internal laws of those religions which oppose same-sex marriage would lead to hostility toward and legal challenges against clergy and religious faiths that refuse to participate in the solemnization of lesbian and gay marriages.

28. In response to these assertions, Egale will argue that the distinction between civil and religious marriage is not illusory. On the contrary, it is well-established in the Canadian legal landscape and the institution of civil marriage (as distinct from religious marriage) is, in fact, one of the public frameworks that allows religious pluralism to thrive in Canada. It allows synagogues, mosques, churches and other temples to offer, restrict or deny access to their solemnization services and rites according to their own principles. The existence of civil alternatives for contracting a legally recognized marriage ensures the freedom of religious communities to shape their own rules. Without civil alternatives for contracting a legally recognized marriage, those who do not conform to the religious rules of various faiths would put great pressure to change on religious organizations. Thus the proposed legislation, which provides civil marriage alternatives to same-sex couples who do not satisfy the marriage requirements of some religious faiths, actually enhances religious freedom in Canada by providing an umbrella under which we all can live, despite our very passionate differences. In developing this argument, Egale will, with the Court’s permission, rely on the affidavit of Rabbi Steven Greenberg, an ordained Rabbi of America’s largest Orthodox Rabbinical Seminary and Senior Teaching Fellow at The National Center for Learning and Leadership.

29. We anticipate, based on arguments presented in the trilogy litigation, that opposing interveners will claim that their equality rights are also infringed (in addition to their freedom of religion) by the extension of marriage to same-sex couples. The equality arguments made in the Courts below may be briefly summarized as follows: Even if there exists a religious exemption, the inclusion of same-sex couples in the institution of civil marriage will lead to the stigmatization and social exclusion of those who hold different views on the acceptability of “same-sex marriage”, many of whom constitute small, historically ostracized, minority religious communities (eg. Muslims and orthodox Jews). Even Evangelical Christians, who are not a small minority, feel subject to societal marginalization and perceive that their religious beliefs have come under attack in recent years. These religious communities will be further alienated from Canadian culture if same-sex marriage is legally recognized, because the validity of same-sex marriage will become part of public discourse and public education, from which they will feel compelled to withdraw based on religious objections. They will be subjected to discrimination because they hold religious views dissentient from the public policy enshrined in same-sex marriage legislation. As a result, they will become increasingly stigmatized and marginalized and the credibility of their religious thought and belief will come under attack, resulting in a strain on the multi-cultural fabric of Canada.

30. Egale will argue that the proposed legislation treats all religious and non-religious persons equally and does not impose any burdens upon or deny any benefits to religious groups that are opposed to same-sex marriage. The very hallmark of a multi-cultural society is that all of its diverse communities must learn to co-exist respectfully and none can expect the state to impose its convictions or traditions on others who hold differing views and beliefs.

31. Religious equality and religious freedom are not infringed by the mere existence of secular laws that are inconsistent with the tenets of particular religious faiths. As mentioned in paragraph xxxx above, the record developed in Egale v. Canada includes examples of numerous unproblematic divergences between the religious convictions and/or internal religious laws (including marriage laws) of various religious groups and the public laws of the state. With the Court’s permission, Egale will rely on this evidence to demonstrate the reconcilable nature of LGBT equality with religious pluralism. Specifically, Egale seeks leave to rely on the affidavits of: Reverend Harold Vann Knight (a Unitarian Minister???), Rabbi David Mivasair (a Reconstructionist Rabbi???), Rabbi Elliot Stevens (a Reform Rabbi who is Executive Secretary of the Central Conference of American Rabbis), Rabbi Steven Greenberg (an Orthodox Rabbi, mentioned above) and Dr. Mary Hunt (a Catholic Theologian and Research Fellow at the Center for the Study of Values in Public Life at Harvard Divinity School).

32. These affidavits, from a variety of religious leaders and scholars, are also useful, in our submission, in demonstrating the diversity of views on same-sex marriage that exists within communities of faith. In the trilogy litigation, the opposing interveners routinely presented their religious freedom and religious equality arguments as though the condemnation of same-sex marriage were universal within Christian, Jewish and Muslim communities, ignoring the diversity of opinion that exists among persons of faith. Our affidavits demonstrate that religious communities are not monolithic and that there is not a single hegemonic position on same-sex marriage within religious communities. This is an important factor to be considered in a proper contextual analysis of the constitutional issues raised by the second Reference question.

33. Finally, Egale will dispute any suggestion that the proposed legislation poses a “threat” to the institution of marriage itself, or to the rights and freedoms of heterosexual married couples or their children. As Justice L’Heureux-Dubé stated in Mossop, “[i]t is possible to be pro-family without rejecting less traditional family forms. It is not anti-family to support protection for non-traditional families. The traditional family is not the only family form, and non-traditional family forms may equally advance true family values.” We have heard arguments that permitting same-sex marriage adversely affects the rights and freedoms of married heterosexuals and their children, because it has negative ramifications for the survival of the institution of marriage itself. The historical evidence that we presented in Egale v. Canada does not support such an impoverished view of the purported fragility and inflexibility of marriage. On the contrary, marriage has demonstrated remarkable durability and capacity to adjust and adapt well to significant economic, political, social, and legal changes over time. There is no reason to believe that the institution of marriage will not adapt to accommodate the equality of LGBTs, just as it adapted historically to accommodate the equality of women (the affidavit of Professor Bradbury, mentioned above, will provide relevant historical evidence on this point). Indeed, common sense would suggest that the historical reforms relating to married women’s rights, which profoundly and directly affected relations between all married heterosexual spouses, must have had much more far-reaching consequences for the institution of marriage than the reform proposed by the legislation, since removing the bar to same-sex marriage has no impact whatsoever on the vast majority of marriages, namely heterosexual marriages. Permitting same-sex couples to contract a valid marriage does not in any way modify, alter, or affect the rights, responsibilities, or relations between married heterosexual spouses or their children.

34. With respect to the third question in the Reference, we note that the proposed legislation explicitly affirms the right of religious communities “to refuse to perform marriages that are not in accordance with their religious beliefs.” In our submission, this right is constitutionally protected by s.2(a) of the Charter, which ensures that religious officials cannot be compelled by the state to perform a same-sex marriage contrary to their religious convictions.

35. We anticipate that opposing interveners will express concern about the limited application of the Charter and the potential for private parties to make human rights complaints against religious groups that do not recognize same-sex marriages within their faith. Although the Charter only applies to government actors, it will be our submission that human rights legislation affords religious groups a defence against any attempt by private parties to compel their unwilling participation in same-sex marriage ceremonies. Moreover, we will take the position that any human rights statute that may be deficient in affording such protection would itself be constitutionally infirm for failing to respect the Charter freedom of religion guarantee.

36. There will likely be additional submissions that we will want to make, depending on the positions articulated by opposing interveners in the Reference. We respectfully submit that it would be most efficient and logical for the opposing interveners to make their submissions to this Court first, before we are required to file our factum, so that we are not making our submissions in anticipation of what they might argue. We therefore request leave of this Court to file our factum after any opposing interveners have filed their factum. This will also permit the Court to assess the full value of our contributions in making its later determination about the amount of time to be allocated to our oral submissions. As noted above, we are requesting 45 minutes of oral submissions in order to be able to develop our arguments fully and ground them in the record that we hope to be permitted to present to the Court.

PART IV - SUBMISSIONS RE: COSTS

37. When the AGC decided to draft legislation to extend capacity to marry to same-sex couples, he could have simply introduced the proposed legislation in Parliament in accordance with the government’s usual practice. Instead, the Governor General in Council chose the extraordinary step of referring the proposed legislation to this Court for an opinion, notwithstanding that the three Reference questions have already effectively been answered consistently by the British Columbia Court of Appeal, the Ontario Court of Appeal and the Quebec Superior Court in Egale, Halpern, and Hendricks respectively -- three Court decisions which the AGC has not sought to appeal.

38. Egale reasonably expected that, if the government accepted the Parliamentary Committee’s recommendation not to appeal the same-sex marriage decisions, the litigation component of our Equal Marriage Campaign would come to an end. Instead, we find ourselves involved in further same-sex marriage litigation (i.e., the within Reference), which we have not initiated, but in which we feel compelled to participate, given our mandate and the affected interests of our members. As outlined above, we believe that a full consideration of the issues raised in this Reference cannot be achieved without the contributions of Egale and the perspectives of the LGBTs who will be most directly affected by the proposed legislation, namely Egale’s constituency. Since the federal government has initiated this Reference for its own political purposes and in support of its own legislative agenda, we submit that Egale should not be required to bear the costs of its participation in the litigation, which will be considerable.

39. For these reasons, we are seeking an order that the AGC pay our costs (fees and disbursements) of this Reference, including the costs of this Motion to intervene, on a full indemnity scale (not in accordance with the tariff of fees and disbursements set out in Schedule B to the Rules of the Supreme Court of Canada), in the event that our intervention is granted.

40. Egale is a not-for-profit organization that has limited financial resources; it nevertheless indemnified the Egale Couples in respect of all legal costs incurred in the same-sex marriage litigation. Egale survives primarily on contributions from its membership and on the generous efforts of numerous volunteers. Although Egale received some funding in respect of the British Columbia litigation and recovered some of its costs in that proceeding from the AGC, we did not recover all of our costs, which were considerable. In the Ontario and Quebec proceedings, Egale received no funding to support its involvement in the litigation and was granted leave to intervene on condition that it could not seek its costs. Egale therefore had to rely on pro bono contributions of its counsel because it could not afford to pay legal fees. Egale is, however, responsible for all disbursements incurred in connection with the litigation and, since Egale received no project funding for these cases, it has drawn from its operating budget to fund the expenses.

PART V - THE ORDERS SOUGHT

41. Egale and the Egale Couples respectfully request:

a) an Order granting us leave to intervene in this Reference, with leave to file a factum of 30 pages in length and to make oral submissions of forty-five (45) minutes duration to the Court at the hearing;

b) an Order that our factum be filed after the filing of the factums of those interveners who are challenging the position of the AGC in the Reference, so that our submissions can directly address and respond to their arguments;

c) an order permitting Egale to supplement the record prepared by the AGC with eight (8) expert affidavits from our evidentiary records in the same-sex marriage trilogy, as set out specifically in our Notice of Motion;

d) an order that the AGC pay our costs (fees and disbursements) of the Reference on a full indemnity scale (not in accordance with the tariff of fees and disbursements set out in Schedule B to the Rules of the Supreme Court of Canada), including our costs of this Motion, in the event that leave to intervene is granted.

ALL OF WHICH IS RESPECTFULLY SUBMITTED,

Cynthia Petersen

SACK GOLDBLATT MITCHELL

Counsel for the Proposed Interveners

Egale Canada Inc. and the Egale Couples

PART VI - TABLE OF AUTHORITIES

(Alphabetically and setting out the paragraph numbers in Part III where authorities are cited)

PART VII - STATUTORY PROVISIONS (bilingually)

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[1]An appeal of the Hendricks decision was initiated by other parties and is scheduled to be heard by the Quebec Court of Appeal in January 2004.

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