Beruflich Dokumente
Kultur Dokumente
1 April 1, 2011
2 Vancouver, B.C.
3
4 (DAY 37)
5 (PROCEEDINGS COMMENCED AT 10:00 A.M.)
6
7 THE CLERK: Order in court. In the Supreme Court of
8 British Columbia at Vancouver this 1st day of
9 April, 2011 calling the matter concerning the
10 constitutionality of section 293 of the Criminal
11 Code, My Lord.
12 MS. GREATHEAD: My Lord, just one very brief loosened
13 to tie up and that concerns the affidavit number 2
14 of Nick Hanna. You may My Lord ship we left it
15 with -- its admissibility with Mr. Wickett some
16 time to consider that question. The Attorney
17 General of British Columbia would like to have it
18 entered as the next exhibit. I understand that
19 Mr. Wickett takes no position on the admissibility
20 but would like to make some brief submissions on
21 the issue, My Lord.
22 It has been procedurally it has been resworn
23 because we never did find -- or the original of
24 the first one has never did arrive here in British
25 Columbia. We do have the original of the resworn
26 version which has been filed.
27 And one final procedural point, we've been
28 operating under the assumption that your order
29 concerning sealing applies to this affidavit as
30 well, My Lord ship.
31 THE COURT: Right. Okay. So perhaps before we mark it
32 I should hear from Mr. Wickett.
33 MR. WICKETT: Good morning, My Lord. My learned friend
34 is correct. Upon some reflection I have decided
35 that I will not take objection to the
36 admissibility of the affidavits but I did want to
37 say to Your Lordship that the issues that you
38 might consider would be obvious grounds for
39 objection such as lateness and the hearsay aspect
40 of some of the documents our matters I propose to
41 reserve myself to comment with respect to weight
42 and use in my closing submissions.
43 THE COURT: Yes.
44 MR. WICKETT: That's really all I wanted to say with
45 respect to that My Lord.
46 THE COURT: MAUFRNG Mr. Wickett.
47 MR. WICKETT: Thank you, My Lord.
2
1 of Canada.
2 If the Supreme Court of Canada is right in
3 paragraph 5 then that argument is not available to
4 the Amicus or the intervenors. The question of
5 limiting the number to two is just simply not on
6 the table. That issue has already been asked and
7 answered. The submission of the Christian Legal
8 Fellowship is simply this. When marriage is
9 defined in the three marriage statutes and those
10 statutes are the civil marriage Act and this is in
11 paragraph 17 of our submissions the civil marriage
12 act the marriage prohibited degrees act and the
13 federal law, harm I nization Act when that
14 definition of marriage is limited to two persons
15 that there is no further question about that
16 choice of two. We submit that it would be within
17 Parliament's authority to choose a different
18 number. It could could choose three it could
19 choose four in unlimited number of individuals
20 could choose to be married. It's much like the
21 right to foot. With he have a right to foot but
22 the exact age as long as Parliament is acting
23 reasonably and without any colourability is
24 Parliament's to choose, that number. And we
25 submit that the definition of marriage and the
26 number of individuals that will be in a marriage
27 in this society is by virtue of section 91 (26)
28 completely within the jurisdiction of Parliament
29 and the decision they did make in this case in
30 2004 ultimately it was passed later in 2005 but
31 when that decision was made that decision to limit
32 it to two is consistent with the charter. That's
33 the direct quote from the court.
34 THE COURT: Yes. But we're not in each marriage here
35 we have two people. The problem is it's multiple
36 marriages.
37 MR. CHIPEUR: That's right and it's possible be I
38 suppose to parse this and say that with one
39 individual is getting married many times and each
40 one of those is a marriage and each one of those
41 meets that definition but it's also possible and
42 we would submit that a better interpretation of
43 those three statutes is when it says two persons
44 it means two persons and that's the end of it.
45 Now, if will his any doubt about what Parliament
46 meant in those three statutes one turns to section
47 293 of the Criminal Code because it is our
11
1 their children.
2 And that section if you look at the section
3 set out at paragraph 1 of the decision you can see
4 by reviewing that particular section that it's
5 fairly general it says every school teacher parent
6 or person standing in the place of a parent has
7 justified in using force et cetera. So it's a
8 general provision. But what does Madam Justice
9 McLachlin do with with that particular SXROIGS she
10 engages I would respectfully submit in an exercise
11 described by Ms. Trask in her submission where she
12 is looking at how do we interpret -- how do we
13 judicially interpret a section when we have a lot
14 of evidence before us you will recall PR this case
15 that there was much expert evidence there was
16 evidence on international law in dealing with the
17 discipline of children and Madam Justice McLachlin
18 in does he remembering the constitutingty of
19 section 43 goes through and reads in but doesn't
20 say she is doing that but and interpret the way
21 she section should apply.
22 And if I can -- there's actually three sets of
23 reasons but if I can have you take a look, please,
24 at paragraph 40 and 43 and that's my page numbers
25 are different than yours but it's paragraph 40 and
26 43.
27 THE COURT: Thank you.
28 MS. WINTERINGHAM: What Madam Justice McLachlin does at
29 paragraph 433 she refers to justice arbor's
30 descent and she says this:
31 "My colleague arbor J by contrast takes the
32 view that section 43 is unSTOOSHLly vague a
33 point of view I'll also expressed by another.
34 First that a the foregoing analysis amounts
35 to an I am Per missable reading down of
36 section 43. This contention is answered by
37 the evidence in this case which established a
38 solid core of meaning for section 43."
39 She DWS on it so I construe terms like reasonable
40 under the circumstances by evidence to evidence
41 and argument is a common and accepted function of
42 courts interpreting the criminal law. To
43 interpret reasonable in light of the evidence is
44 not judicial amendment but judicial interpretation
45 it is common practice given the number of criminal
46 offences conditioned by the term reasonable. If
47 it is not the function of the appellant courts to
40
1 .
2 THE COURT: Ms. Gaffar.
3 MS. GAFFAR: My Lord just as you have the unenVEEBL
4 task of interpreting section 2933 I have the
5 unenviable task of addressing you late in the day
6 on a Friday after the week of submissions.
7 THE COURT: You have my unconfided attention.
8 MS. GAFFAR: Sadly I will be referring to you further
9 case authority and now we have alienateded the DAM
10 I will not be taking through our submissions
11 paragraph by paragraph under section 1 which I'm
12 sure you'll be relieved to hear but I will also be
13 dealing with some points raised in had the closing
14 submissions of others.
15 As they affect West Coast Leaf's submissions.
16 At the section 1 stage it's about limitations.
17 It's about weighing beings competes in different
18 charter rights and it's about considering the
19 impact of women's and girl's equality rights in a
20 very real way as they impact the charter claimants
21 section -- excuse me right under section 1.
22 The question we have here is can and should
23 the charter claimant's right be limited. The
24 SPOENS of West Coast Leaf is emphatically and
25 absolutely yes. It is at the section 1 stage,
26 My Lord that the effect of West Coast Leaf's
27 submissions on reading down truly shine. If a
28 read down section 293 establishes a criminal
29 prohibition that would fulfil the justification
30 requirements of section 1 perfectly.
31 My Lord, if I may give you just a brief
32 synopsis of with I'm going there's a bit of
33 jumping around because I will be dealing with
34 different aspects located this different parts of
35 our submission but under the rubric of section be
36 1 is.
37 I will begin by discussing the considerations
38 under section 1 and those include the underlying
39 values. I will ask Your Lordship to go back to
40 first principles. I will then discuss briefly the
41 weighing exercise that occurs here. I will then
42 discuss the factual and social context. I will
43 then discuss harms but you will be relieved O hear
44 I will be not be dealing with each and every harm.
45 What I would like to focus on are those harms that
46 go beyond the obvious ones and directly implicate
47 the equality rights of women and girls.
64