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The
first document here in the July 8, 2003
Appeal Court decision lifting the suspension
of remedy for the province of BC and ordering
immediate access to same-sex marriage. The
second is the Appeal Court decision for
BC from May 1, 2003. For
more information and for the text of other
decisions, here and elsewhere, see www.egale.ca.
Court of Appeal No. CA029017
Vancouver Registry
COURT OF APPEAL
ON APPEAL FROM: the Supreme Court of British
Columbia from the Judgment of the Honourable
Mr. Justice Pitfield Pronounced the 2nd
day of October, 2001
BETWEEN:
DAWN BARBEAU AND ELIZABETH BARBEAU,
PETER COOK AND MURRAY WARREN,
JANE HAMILTON AND JOY MASUHARA,
PETITIONERS
(APPELLANTS)
AND:
THE ATTORNEY GENERAL OF BRITISH COLUMBIA
THE ATTORNEY GENERAL OF CANADA,
RESPONDENTS
(RESPONDENTS)
________________________________________________________________________
Court of Appeal No. CA29048
Vancouver Registry
COURT OF APPEAL
ON APPEAL FROM: the Supreme Court of British
Columbia from the Judgment of the Honourable
Mr. Justice Pitfield Pronounced the 2nd
day of October, 2001
BETWEEN:
EGALE CANADA INC., DAVID SHORTT AND SHANE
MCCLOSKEY,
MELINA ROY AND TANYA CHAMBERS, LLOYD THORNHILL
AND
ROBERT PEACOCK, ROBIN ROBERTS AND DIANNA
DENNY,
WENDY YOUNG AND MARY THERESA HEALY,
PETITIONERS
(APPELLANTS)
AND:
THE ATTORNEY GENERAL OF BRITISH COLUMBIA,
THE ATTORNEY GENERAL OF CANADA, AND
THE DIRECTOR OF VITAL STATISTICS FOR BRITISH
COLUMBIA,
RESPONDENTS
(RESPONDENTS)
________________________________________________________________________
APPELLANTS’ WRITTEN SUBMISSIONS
(BARBEAU ET AL., No. CA029017)
________________________________________________________________________
Solicitor for the Appellants in CA029017:
Kathleen A. Lahey Address for service:
Barrister and Solicitor Smith and Hughes
86 Beverley Street 4088 Cambie Street
Kingston, Ont. K7L 3Y6 Vancouver B.C. V58
2X8
Tel.: 613/545-0828 Tel.: 604/631-3131
Fax: 613/533-6509 Fax: 604/631-3232
Counsel: KATHLEEN A. LAHEY Agent: K.W. Smith
Solicitors for the Appellants in CA029048:
Arvay, Finlay Sack Goldblatt Mitchell
Barristers and Solicitors Barristers and
Solicitors
888 Fort Street (4 floor) 20 Dundas Street
West (Suite 1130) th
Victoria, B.C. V8W 1H8 Toronto, Ont. M5G
2G8
Tel.: 250/388-6868 Tel.: 416/979-6440
Fax: 250/388-4456 Fax: 416/591-7333
Counsel: JOSEPH J. ARVAY, Q.C. Counsel:
CYNTHIA PETERSEN
Solicitor for the Respondent the Attorney
General of Canada:
Department of Justice - Canada
840 Howe Street (Suite 900)
Vancouver, B.C. V6Z 2S9
Tel.: 604/775-7421
Fax: 604/666-1462
Counsel: JUDITH A. MAURO BOWERS, Q.C.
Solicitor for the Respondent the Attorney
General of British Columbia:
Ministry of the Attorney General
Legal Services Branch
1001 Douglas Street (6 floor) th
Victoria, B.C. V8W 9J7
Tel.: 250/356-8892
Fax: 250/356-9154
Counsel: LEAH GREATHEAD
Solicitor for the Intervenors Coalition
of Canadian Liberal Rabbis
Smith and Hughes
4088 Cambie Street
Vancouver, B.C. V57 2X8
Tel.: 604/683-4176
Fax: 604/683-2621
Counsel: KENNETH W. SMITH
Solicitors for the Intervenor B.C. Coalition
for Marriage and Family
Fasken Martineau DuMoulin
1075 West Georgia St. Suite 2100
Vancouver, B.C. V6E 3G2
Tel.: 604/631-3131
Fax: 604/631-3232
Counsel: GEOFFREY COWPER, Q.C.
Solicitors for the Intervenor Interfaith
Coalition
Iain Benson
Barrister and Solicitor
1223 Millers Landing Road
Bowen Island, B.C. V0N 1G0
Tel.: 604/947-2665
Fax: 604/947-2664
Counsel: IAIN BENSON
INDEX
PART PAGE
PART 1
STATEMENT OF ISSUE .......................................................................1
PART 2
POSITION OF THE APPELLANTS ......................................................1
PART 3
SUBMISSIONS.......................................................................................
2
PART 4
ORDER SOUGHT ..................................................................................
5
LIST OF AUTHORITIES ....................................................................................6
1 PART 1
2 STATEMENT OF ISSUE
3
4 1. These submissions address the issue
of This Honourable Court’s variation
of the
5 terms of The Honourable Madame Justice
Prowse’s Judgment in Barbeau et al.
v. British
6 Columbia (Attorney General), 2003 BCCA
251 (Docket Nos. CA029017 and CA029048)
as it
7 relates to the suspension of the relief
referred to in paragraphs 158 and 159 of
her Judgment.
8
9
10
11 PART 2
12 POSITION OF THE APPELLANTS
13 2. It is the submission of the Appellants
that the suspension of the relief ordered
in
14 this case, which was to originally expire
on July 12, 2004, should be lifted in order
to minimize
15 confusion and uncertainty in the application
of the law to same-sex marriages in Canada
and to
16 permit same-sex couples in British Columbia
to receive marriage licenses on the same
basis
17 that they have been receiving them in
Ontario since June 10, 2003.
18
19
20
21
22
23
2
1 PART 3
2 SUBMISSIONS
3 3. On May 1, 2003, This Honourable Court
issued its Judgment in Barbeau et al.
4 v. Attorney General of Canada et al.,
in which it held that the common law prohibition
on the
5 marriage of same-sex couples unjustifiably
violates section 15(1) of the Canadian Charter
of
6 Rights and Freedoms.
7 Barbeau et al. v. Attorney General of
Canada et al., 2003 BCCA 251, para. 158
8 (Vancouver Registry Nos. CA029017, CA029048),
per Prowse, Mackenzie and
9 Low JJ.A.
10
11 4. In her Judgment, Madame Justice Prowse
held that this discrimination should be
12 remedied in the following fashion:
13 ¶ 158 I would grant the declaration
sought by the appellants, namely:
14
15 (a) a declaration pursuant to s. 52 of
the Constitution Act, 1867 that the
16 common law bar against same-sex marriage
is of no force or effect
17 because it violates rights and freedoms
guaranteed by s. 15 of the Charter
18 and does not constitute a reasonable
and demonstrably justified limit on
19 those rights and freedoms within the
meaning of s. 1 of the Charter.
20
21 ¶ 159 I would also reformulate the
common law definition of marriage to mean
"the
22 lawful union of two persons to the exclusion
of all others".
23
24 ¶ 161 I would suspend the relief
referred to in paras. 158 and 159 until
July 12,
25 2004, solely to give the federal and
provincial governments time to review and
revise
26 legislation to bring it into accord with
this decision. This period of suspension
coincides
27 with the expiration of the 24-month suspension
of remedy in Halpern, and is necessary,
28 in my view, to avoid confusion and uncertainty
in the application of the law to same-sex
29 marriages. The appellants acknowledge
that there will be consequential amendments
30 required to both federal and provincial
legislation to give effect to this decision.
31 Barbeau et al., 2003 BCCA 251, paras.
158, 159, 161, Mackenzie and Low JJ.A.
32 concurring.
33
3
1 5. On June 10, 2004, the Ontario Court
of Appeal issued its Judgment in Halpern
2 et al. v. Canada (A.G.), a case also involving
a Charter challenge to the validity of the
denial of
3 marriage to same-sex couples. That Honourable
Court ordered the same remedy as had This
4 Honourable Court with regard to the reformulation
of the common law relating to same-sex
5 marriage:
6 ¶ 149 We reject the AGC's submission
that the only remedy we should order is
a
7 declaration of invalidity, and that this
remedy should be suspended to permit Parliament
8 to respond. A declaration of invalidity
alone fails to meet the court's obligation
to
9 reformulate a common law rule that breaches
a Charter right. Lamer C.J.C. highlighted
10 this obligation in Swain at 978:
11
12 [B]ecause this appeal involves a Charter
challenge to a common law,
13 judge-made rule, the Charter analysis
involves somewhat different
14 considerations than would apply to a
challenge to a legislative provision.
15 ... Given that the common law rule was
fashioned by judges and not by
16 Parliament or a legislature, judicial
deference to elected bodies is not an
17 issue. If it is possible to reformulate
a common law rule so that it will
18 not conflict with the principles of fundamental
justice, such a
19 reformulation should be undertaken.
20
21 Halpern et al. v. Canada (A.G.), [2003]
O.J. No. 2268, paras. 152, 153 (Ont.
22 C.A., June 10, 2003), per McMurtry C.J.,
Macpherson and Gillese JJ.
23
24
25 6. Noting Lamer C.J.C’s concern
in Schachter that ‘[a] delayed declaration
allows a
26 state of affairs which has been found
to violate standards embodied in the Charter
to persist for
27 a time despite the violation,’ the
Ontario Court of Appeal found that denying
the period of
28 suspension requested by the Attorney
General of Canada would not pose any ‘potential
public
29 danger, threat to the rule of law, or
denial of benefit to deserving persons,’
nor would it require
30 any significant volume of legislative
reform.
31 Halpern et al. v. Canada (A.G.), [2003]
O.J. No. 2268, para. 152, quoting
32 Schachter v. Canada, [1992] 2 S.C.R.
679, 717, per Lamer C.J.C.
33
4
1 7. The Ontario Court of Appeal accordingly
held that it was necessary to
2 immediately declare the common law definition
of marriage invalid to the extent that it
referred
3 to ‘one man and one woman’ in
order to ‘ensure that opposite-sex
couples and same-sex
4 couples immediately receive equal treatment
in law in accordance with s. 15(1) of the
Charter.’
5 The Court then ordered that the declaration
of invalidity and the reformulated common
law
6 definition of marriage to have immediate
effect.
7 Halpern et al. v. Canada (A.G.), [2003]
O.J. No. 2268, paras. 153, 155.
8
9 8. In its Judgment in this appeal, this
Honourable Court granted a period of
10 suspension for ‘solely to give the
federal and provincial governments time
to review and revise
11 legislation to bring it into accord with
this decision.’ The Court timed the
period of suspension
12 to coincide with the period of suspension
originally ordered by the Ontario Divisional
Court in
13 Halpern (to July 12, 2004) ‘to avoid
confusion and uncertainty in the application
of the law to
14 same-sex marriages.’
15 Barbeau et al., 2003 BCCA 251, para.
161
16
17 9. The Appellants respectfully submit
that This Honourable Court may take
18 judicial notice that the federal Minister
of Justice has announced the decision to
not appeal the
19 Ontario Court of Appeal decision in Halpern
or the decision in the instant case, therefore
20 obviously signalling that no period of
suspension is needed to enable the federal
and provincial
21 governments time to review and revise
legislation to bring it into accord with
these two
22 decisions.
23
5
1 10. The Appellants also respectfully submit
that in light of the fact that the law
2 relating to same-sex marriage in Ontario
changed immediately on June 10, 2003, and
the fact
3 that this is federal law, it would ‘avoid
confusion and uncertainty in the application
of the law
4 to same-sex marriages’ if the Honourable
Court would lift the suspension and give
immediate
5 effect to coordinate changes in the federal
law relating to same-sex marriage.
6
7 PART 4
8 ORDER REQUESTED
9 The Appellants therefore request that
in order to remedy the infringement of the
Appellants’
10 constitutional rights, this Honourable
Court:
11
12 (a) Order the reformulated common law
definition of marriage as ‘the lawful
union
13 of two persons to the exclusion of all
others’ to have immediate effect, and
14
15 (b) Order such further and other relief
as this Honourable Court deems just.
16
17 ALL OF WHICH IS RESPECTFULLY SUBMITTED,
18
19
20
21 _________________________
22 Kathleen A. Lahey
23 Counsel for the Appellants
24 June 24, 2003
25
26 By Kenneth W. Smith, agent
27 Smith and Hughes
28 4088 Cambie Street
29 Vancouver B.C. V58 2X8
6
1
2 LIST OF AUTHORITIES
3
4
5 PAGES
6
7 Halpern et al. v. Canada (A.G.),
8 [2003] O.J. No. 2268 (Ont. C.A., June
10, 2003) 2, 3, 4Court of Appeal for British
Columbia
Citation:
Barbeau
v. British Columbia (Attorney General),
2003 BCCA 251
Date: 20030501
Docket: CA029017;
CA029048
Docket: CA029017
Between:
Dawn Barbeau and Elizabeth Barbeau
Peter Cook and Murray Warren,
Jane Hamilton and Joy Masuhara
Appellants
(Petitioners)
And
The Attorney General of British Columbia
and
The Attorney General of Canada
Respondents
(Defendants)
- and -
Docket: CA029048
Between:
EGALE Canada Inc.,
David Shortt and Shane McCloskey,
Melinda Roy and Tanya Chambers,
Lloyd Thornhill and Robert Peacock,
Robin Roberts and Diana Denny,
Wendy Young and Mary Theresa Healy
Appellants
(Petitioners)
And
The Attorney General of Canada,
The Attorney General of British Columbia,
and
The Director of Vital Statistics for British
Columbia
Respondents
(Respondents)
Before:
The Honourable Madam Justice Prowse
The Honourable Mr. Justice Mackenzie
The Honourable Mr. Justice Low
J.J. Arvay Q.C. and C. Petersen
Counsel for the Appellants in CA029017,
Barbeau et al.
K.A. Lahey
Counsel for the Appellants in CA029048,
EGALE Canada Inc., et al.
L. Greathead
Counsel for the Respondents, Attorney General
of B.C. and Director of Vital Statistics
J.A.M. Bowers, Q.C.,
S.C. Postman and W.J.M. Divoky
Counsel for the Respondent, Attorney General
of Canada
K.W. Smith and R.J. Hughes
Counsel for the Intervenors, Coalition of
Canadian Liberal Rabbis for Same-Sex Marriage
D.G. Cowper, Q.C. and C. Silver
Counsel for the Intervenor, B.C. Coalition
for Marriage and Family
I.T. Benson
Counsel for the Intervenor, Interfaith Coalition
for Marriage
Place and Dates of Hearing:
Vancouver, British Columbia
February 10-12, 2003
Place and Date of Judgment:
Vancouver, British Columbia
May 1, 2003
Written Reasons by:
The Honourable Madam Justice Prowse
Concurring Reasons by:
The Honourable Mr. Justice Mackenzie (Page
84, para. 164)
Concurred in by:
The Honourable Mr. Justice LowINDEX
Paragraph No.
I.
Introduction
1
II.
Conclusion
7
III.
Nature of Appeals
8
IV.
Issues on Appeals
10
V.
The Parties and the Intervenors
14
VI.
Procedural Background
24
VII.
Decision of the Trial Judge
31
VIII.
Discussion of the Issues
A. The Evidence
34
B. Developments in the Law Relating
to Same-Sex Couples
37
C. Is there a Common Law Bar
to Same-Sex Marriage?
40
D. A Plain Reading of the Marriage
Act
57
E. The Constitutional Issue
59
F. Charter Values
73
G. Section 15 of the Charter
81
H. Other Alleged Charter Breaches
97
I. Section 1 of the Charter
101
J. Remedy
136
IX.
Result
162Reasons for Judgment of the Honourable
Madam Justice Prowse:
I. INTRODUCTION
[1]
The primary issues addressed on these appeals
are whether there is a common law bar to
the marriage of same-sex couples, and, if
so, whether that bar should be struck down
as offending the Canadian Charter of Rights
and Freedoms (the "Charter"),
or Charter values.
[2]
These issues have recently been canvassed
by the Ontario Divisional Court in Halpern
v. Canada (Attorney General), [2002] O.J.
No. 2714, (2002) 215 D.L.R. (4th) 223.
Similar issues were dealt with by the Superior
Court of Quebec in Hendricks v. Québec
(Attorney General), [2002] J.Q. No. 3816.
[3]
In Halpern, the court held that there was
a common law bar to marriage between same-sex
couples; that the common law bar contravened
s. 15 of the Charter; and that the contravention
of s. 15 could not be saved under s. 1.
This decision has been appealed to the Ontario
Court of Appeal which has reserved its decision.
[4]
In Hendricks, the court held that s. 5 of
the Federal Law - Civil Law Harmonization
Act No. 1, S.C. 2001, c. 4 (the "FCHA"),
s. 1.1 of the Modernization of Benefits
and Obligations Act, S.C. 2000, c. 12 (the
"MBOA"), and part of para. 2 of
Article 365, Civil Code of Québec,
S.Q. 1991, c. 64, which operate as a bar
to same-sex marriages, contravene s. 15
of the Charter and cannot be justified under
s. 1. This judgment has also been
appealed.
[5]
In Halpern, the court declared the common
law bar to same-sex marriage to be constitutionally
invalid and inoperative and suspended the
remedy for a period of 24 months.
Mr. Justice LaForme would have granted immediate
declaratory relief and reformulated the
common law definition of marriage to mean
"the lawful union of two persons to
the exclusion of all others".
The entered order provides that "in
the event that Parliament does not act accordingly
prior to the expiration of 24 months ...",
the common law definition of marriage shall
be reformulated as stated by Mr. Justice
LaForme.
[6]
In Hendricks, Madam Justice Lemelin declared
the statutory bars to same-sex marriage
to be of no force and effect and stayed
that declaration for two years.
II. CONCLUSION
[7]
For the reasons which follow, I conclude
that there is a common law bar to same-sex
marriage; that it contravenes s. 15 of the
Charter; and that it cannot be justified
under s. 1 of the Charter. I would
grant the declaratory relief set forth at
para. 158, infra, and reformulate the common
law definition of marriage to mean "the
lawful union of two persons to the exclusion
of all others". I would suspend
these remedies until July 12, 2004, solely
to give the federal and provincial governments
time to review and revise legislation to
accord with this decision.
III. NATURE OF APPEALS
[8]
These are appeals from the decision of a
Supreme Court judge, rendered October 2,
2001, dismissing the petitions of the individual
appellants, and of EGALE Canada Inc. ("EGALE"),
for declarations, inter alia, that the issuer
of marriage licences under s. 31 of the
Marriage Act, R.S.B.C. 1996, c. 282, is
permitted to issue marriage licences to
couples of the same sex; that there is no
legal bar to the marriage of two persons
of the same sex; or, if there is such a
bar, it is of no effect; and for orders
of mandamus to compel the issuance of marriage
licences to the individual appellants and
to other same-sex couples who otherwise
meet the requirements of the Act.
[9]
The reasons for judgment of the trial judge
are reported at (2001), 95 B.C.L.R. (3d)
122.
IV. ISSUES ON APPEALS
[10] The appellants submit
that the learned trial judge erred in finding:
(1) that the Constitution of Canada
bars recognition of same-sex marriages and
that neither the federal nor provincial
governments has the power to provide for
same-sex marriages, except by way of a constitutional
amendment;
(2) that there is a common law bar
to same-sex marriage in Canada;
(3) in the alternative, that if there
is a common law bar to same-sex marriage,
that bar does not breach the individual
appellants' rights under ss. 2, 6,
7 and 28 of the Charter;
(4) in the alternative, that if there
is a common law bar to same-sex marriage,
and assuming that the common law bar breaches
the equality rights of the individual appellants
under s. 15 of the Charter, that such breach
is justifiable under s. 1 of the Charter.
[11] The respondents,
the Attorney General of Canada ("AGC")
and the Attorney General of British Columbia
("AGBC") agree with the appellants
that the trial judge erred as set forth
in the first ground of appeal, supra.
The AGC also submits that the learned trial
judge erred in finding that, to the extent
there is a common law bar to same-sex marriages,
that bar breaches the individual appellants'
rights under s. 15 of the Charter.
[12] The AGBC takes no
position with respect to the allegations
of Charter breaches or the application of
s. 1 of the Charter.
[13] There is also a significant
issue as to the appropriate remedy in the
event this court resolves the substantive
issues in favour of the appellants.
V. THE PARTIES AND THE INTERVENORS
[14] Each of the individual
appellants is living in a committed same-sex
relationship and wishes to marry the person
with whom he/she is living. These
appellants are of different ages, ethnicities
and religions. Some of them have cohabited
for a relatively short time, while others
have spent decades of their lives together.
Some of them have raised children; others
intend to do so in the future.
[15] The affidavits sworn
by the individual appellants reveal that
their reasons for wanting to marry are the
same as for many heterosexual couples.
Those reasons include: love, reinforcing
family support, social recognition, ensuring
legal protection, financial and emotional
security, religious or spiritual fulfillment,
providing a supportive environment for children,
and strengthening their commitment to their
relationship. They simply want what
heterosexual couples have — the right
to marry the person with whom they are living
in a committed relationship.
[16] The appellant, EGALE
("Equality for Gays and Lesbians Everywhere"),
is a national organization committed to
the advancement of equality for lesbians,
gays, bisexuals and transgendered people
in Canada.
[17] The intervenor, the
B.C. Coalition for Marriage and Family (the
"B.C. Coalition"), is an umbrella
group made up of three organizations: the
Focus on the Family (Canada) Association,
the Alliance for Social Justice, and Real
Women of British Columbia.
[18] The intervenor, the
Interfaith Coalition for Marriage (the "Interfaith
Coalition"), is comprised of the Catholic
Archdiocese of Vancouver, the Islamic Society
of North America, the B.C. Muslim Association,
the Evangelical Fellowship of Canada, the
Catholic Civil Rights League and the B.C.
Council of Sikhs.
[19] The intervenor, the
Coalition of Canadian Liberal Rabbis for
Same-Sex Marriage (the "Liberal Rabbis"),
consists of a group of reform, reconstructionist
and Jewish renewal rabbis.
[20] The B.C. Coalition
and the Interfaith Coalition were granted
intervenor status by order of Madam Justice
Rowles, made June 6, 2002 (reasons released
July 4, 2002). The Liberal Rabbis
were granted intervenor status by order
of Madam Justice Rowles pronounced June
21, 2002.
[21] The B.C. Coalition
and the Interfaith Coalition support the
position taken by the AGC, except that they
also support the conclusion of the trial
judge that the Constitution of Canada bars
same-sex marriages, and that neither the
federal nor the provincial governments has
the power to legislate with respect to same-sex
marriages in the absence of a constitutional
amendment.
[22] The Liberal Rabbis
generally support the position of the appellants.
[23] The intervenors were
granted status on the basis that they would
neither seek nor be granted costs, and that
any additional disbursements incurred by
the parties as a result of their intervention
would be borne by the intervenors.
VI. PROCEDURAL BACKGROUND
[24] Between December
1998 and October 2000, at least nine same-sex
couples applied to the B.C. Director of
Vital Statistics (the "Director")
for marriage licences. In each case,
the Director had denied the requests.
The denial was based on a legal opinion
the Director received from the Ministry
of Attorney General advising that there
was a common law bar to same-sex marriages,
that the appellants, therefore, did not
have the capacity to marry at law, and that
only the federal government had the power
to remove the common law bar by enacting
legislation to redefine marriage or to change
the rules concerning capacity to marry.
[25] On July 20, 2000,
the AGBC filed a petition in the B.C. Supreme
Court (No. L001944) seeking an order declaring
that a person appointed an issuer of marriage
licences pursuant to s. 31 of the
Marriage Act is permitted to issue a marriage
licence to persons of the same sex, and
declaring that persons are not barred from
marrying one another solely on the basis
that they are of the same sex. (This
petition was subsequently withdrawn on July
16, 2001, following a change in government.)
[26] On October 13, 2000,
EGALE and five of the appellant couples
filed a petition in the B.C. Supreme Court
(No. L002698) challenging the Director's
decision not to issue the couples marriage
licences and seeking related relief.
[27] On November 7, 2000,
three additional same-sex couples filed
a petition in the B.C. Supreme Court (No.
L003197) challenging the Director's decision
not to issue the couples marriage licences
and seeking additional relief.
[28] Chief Justice Brenner
made an order on November 28, 2002 directing
that the two petitions be heard at the same
time. He also granted intervenor status
to the B.C. Coalition and the Interfaith
Coalition.
[29] The petitions were
heard by the trial judge between July 23
and August 3, 2001. The reasons of
the trial judge were delivered October 2,
2001 (followed by a corrigendum on October
4, 2001). On October 4, 2002, the
trial judge issued his reasons for judgment
with respect to costs.
[30] The petitioners appealed
the decision of the trial judge and, by
consent order dated December 7, 2001, the
appeals were directed to be heard at the
same time.
VII. DECISION OF THE TRIAL JUDGE
[31] The trial judge summarized
his conclusions with respect to the issues
before him in his "Summary of Opinion
and Disposition" at paras. 8-12 of
his reasons for judgment:
Under Canadian
law, marriage is a legal relationship between
two persons of opposite sex. The legal
relationship does not extend to same-sex
couples.
Marriage was defined
by common, or judge-made law. Judges
should only change the common law in incremental
steps. A change to define marriage
as the legal union of two individuals, regardless
of sex, is not incremental. The change
would have broad legal ramifications and
would require, at the least, rules to govern
the formation and dissolution of same-sex
unions. Any permitted change to the
common law of marriage must be made by legislation.
Parliament may
not enact legislation to change the legal
meaning of marriage to include same-sex
unions. Under s. 91(26) of the Constitution
Act, 1867, Parliament was given exclusive
legislative jurisdiction over marriage,
a specific kind of legal relationship.
Byattempting to change the legal nature
of marriage, Parliament would be self-defining
a legislative power conferred upon it by
the Constitution rather than enacting legislation
pursuant to the power. Parliament
would be attempting to amend the Constitution
without recourse to the amendment process
provided by the Constitution Act, 1982.
Alternatively, Parliament would be attempting
to enact legislation in respect of civil
rights exclusively within the legislative
authority of the province.
"Marriage",
as a federal head of power with legal meaning
at confederation, is not amenable to Charter
scrutiny. One part of the Constitution
may not be used to amend another.
Alternatively, if the legal relationship
of "marriage" is subject to Charter
scrutiny, its legal character does not infringe
the petitioners' fundamental freedoms of
expression or association, their mobility
rights or their rights of liberty and security
of the person, but does infringe their equality
rights.
The infringement
of the petitioners' equality rights is a
reasonable and demonstrably justified limit
in a free and democratic society and is
saved by s. 1 of the Charter.
[32] In his reasons on
costs dated October 4, 2002, the trial judge
ordered that the parties bear their own
costs since "the basis of disposition
[of the petitions] differed from grounds
raised by either of them." ([2002]
B.C.J. No. 2239, para. 8.) That remark
is a reference to the fact that the primary
constitutional basis upon which the trial
judge dismissed the petitions was raised
by the trial judge during the course of
the hearing and resolved on the basis of
oral and written submissions he solicited
from the parties in that regard.
[33] I will elaborate
on the trial judge's reasons for his conclusions
as I address each of the individual grounds
of appeal.
VIII. DISCUSSION
OF THE ISSUES
A.
The Evidence
[34] The evidence before
the trial judge consisted of the affidavits
of the individual appellants setting forth
their personal history, the history of their
relationships and their reasons for wanting
to marry. Those affidavits are referred
to by the trial judge at paras. 14-43 of
his reasons. I will repeat here only
his summary (at para. 45):
The difference between these [the appellant
couples] and heterosexual couples is that
the former choose and prefer a committed
relationship and sexual relations with a
person of the same, rather than opposite,
sex. Because they are gay or lesbian,
these couples have been told they cannot
gain recognition as married persons.
[35] The parties and the
intervenors also filed affidavits by individuals
having expertise in various fields, including
individual and comparative religions, history,
anthropology, ethics and law, sociology,
gender studies, linguistics, lesbian and
gay studies, theology, education, economics,
and philosophy. Those affidavits include
opinions on such topics as the history of
marriage; whether same-sex marriages have
ever been recognized within societies; if
so, whether same-sex marriages have ever
represented a norm within those societies;
the beliefs of various religious groups
with respect to marriage in general and
same-sex marriage in particular; the potential
consequences within specific religions,
and within society generally, if same-sex
marriages are recognized at law, etc.
While these affidavits were enlightening,
several overstepped the boundary between
opinion evidence on a matter in issue, and
advocacy for a particular result.
[36] I note that the expert
evidence in these cases was similar to the
expert evidence before the courts in Halpern
and Hendricks. Many of the same experts
provided opinions, particularly in Halpern.
Thus, the evidentiary foundation for the
decisions in those cases paralleled, but
was not identical to, the evidentiary foundation
before the trial judge in these proceedings.
It should be noted that the expert evidence
was untested by cross-examination.
Further, a degree of caution must be exercised
in approaching the evidence of individuals
purporting to speak on behalf of entire
religious groups.
[37] In his reasons for
judgment, under the heading "The Evolution
of Parallelism", the trial judge discussed
the relatively recent developments in Canadian
statutory law which have extended economic
and other benefits and obligations to same-sex
couples which had previously been available
only to married couples. These changes
are set forth in some detail at paras. 47-70
of the trial judge's reasons. They
include changes to statutes in relation
to spousal support, guardianship, adoption,
pension entitlement and medical decision-making.
In British Columbia, many of these changes
were accomplished by defining the word "spouse"
in the relevant legislation to include same-sex
partners.
[38] The trial judge noted
that, unlike married couples, common-law
and same-sex couples only acquire the rights
and obligations available to married couples
following a period of cohabitation, the
length of which varies from province to
province. He did not suggest, nor
could it reasonably be suggested, that same-sex
couples enjoy all of the rights of married
couples, except the right to marry.
What can be said is that there has been
a movement over the last several years to
provide same-sex couples with many benefits
(and corresponding obligations) they had
been denied under previous legislation because
of their same-sex status.
[39] I note that the appellants
rely on these changes in the law to argue
that any further change to the common law
to permit same-sex marriages could properly
be termed "incremental".
The AGC, B.C. Coalition, and Interfaith
Coalition, on the other hand, rely on these
changes to suggest that the goal of
same-sex couples of achieving parity with
opposite-sex couples has been substantially
met, and that the law should not take the
further step requested by the appellants.
They say that the further changes sought
by the appellants would so fundamentally
alter the concept of marriagethat marriage
would become unrecognizable and unacceptable
to those who oppose such a change, particularly
those whose religious beliefs preclude them
from accepting same-sex marriages.
C. Is there a Common Law Bar
to Same-Sex Marriage?
[40] I preface this discussion
by observing that (subject to the resolution
of the first ground of appeal), it is common
ground between the parties that the federal
government has jurisdiction over marriage,
including the capacity to marry, pursuant
to s. 91(26) of the Constitution Act, 1867
under the heading: "Marriage and Divorce".
The provinces, in turn, have jurisdiction
to legislate with respect to the conditions
governing the celebration of marriage under
s. 92(12) of the Constitution Act, 1867
under the heading: "The Solemnization
of Marriage in the Province", and to
legislate with respect to "Property
and Civil Rights in the Province" under
s. 92(13).
[41] The parties agree
that neither Parliament, nor the provincial
legislature, has enacted legislation which
prohibits same-sex marriages. From
a historical viewpoint, however, it must
be remembered that same-sex conduct constituted
a criminal offence in Canada until 1969.
Thus, the prospect of same-sex marriages
did not realistically arise in Canada until
some time thereafter.
[42] The only federal
statutes which directly touch on the question
of same-sex marriage are s. 1.1 of the MBOA
and s. 5 of the FCHA. Section 1.1
of the MBOA provides:
1.1. For greater certainty, the amendments
made by the Act do not affect the meaning
of the word "marriage" that is,
the lawful union of one man and one woman
to the exclusion of all others.
[43] The MBOA was an omnibus
bill amending 68 federal statutes to extend
benefits and obligations already available
to married and common-law opposite-sex couples,
to common-law same-sex couples, and to extend
other benefits only available to married
couples to all common-law couples.
It was a legislative response to the Supreme
Court of Canada's decision in M. v. H.,
[1999] 2 S.C.R. 3. In brief, M. v.
H. declared that the definition of "spouse"
in s. 29 of the Family Law Act, R.S.O. 1990,
c. F.3, was of no force or effect as constituting
an infringement of s. 15 of the Charter
which was not saved by s. 1. Section
29 restricted the definition of "spouse"
to married or common law opposite-sex couples,
thereby excluding same-sex couples.
[44] It is not suggested
by any of the parties that s. 1.1 of the
MBOA does anything more than state Parliament's
view as to what marriage is. It does
not purport to be an exercise of Parliament's
power to legislate in relation to marriage
under s. 91(26) of the Constitution Act,
1867.
[45] Section 5 of the
FCHA provides:
5. Marriage requires the free
and enlightened consent of a man and a woman
to be the spouse of the other.
This Act came into effect on June 1, 2001.
Its purpose was to harmonize the federal
law with the civil law of the Province of
Quebec.
[46] As earlier noted,
both s. 1.1 of the MBOA and s. 5 of the
FCHA were struck down by the court in Hendricks
as unjustifiable violations of s. 15 of
the Charter.
[47] There is no suggestion
that the Marriage Act, or any other provincial
statute, contains a bar to same-sex marriage.
In fact, subject to the resolution of the
first ground of appeal, any attempt by the
province to create such a legislative bar
would be viewed as exceeding the provincial
government's legislative powers by intruding
on the federal government's power to legislate
with respect to capacity to marry.
[48] The Marriage Act
makes no express reference to any requirement
that marriage can only take place between
opposite-sex couples. Sections 6 and
7(1) of the Marriage Act provide:
6 Subject to this Act
and any Act of Canada in force in British
Columbia, the law of England as it existed
on November 19, 1858 prevails in all matters
relating to the following:
(a) the mode of solemnizing marriages;
(b) the validity of marriages;
(c) the qualifications of parties
about to marry;
(d) the consent of guardians or parents,
or any person whose consent is necessary
to the validity of a marriage.
7 (1) A religious
representative registered under this Act
as authorized to solemnize marriage has
and may exercise authority to solemnize
marriage in accordance with this Act between
any 2 persons neither of whom is under a
legal disqualification to contract marriage.
[Emphasis added.]
[49] It is the absence
of any statutory prohibition of same-sex
marriages which gives rise to the question
of whether there is, nonetheless, a prohibition
against same-sex marriage at common law.
[50] As earlier stated,
the trial judge found that there was a common
law bar to same-sex marriage; namely, the
common law definition of marriage.
In that regard, he relied on the oft-quoted
passage from Hyde v. Hyde and Woodmansee
(1866), L.R. 1 P. & D. 130 (H.L.), at
p. 130. There, in deciding whether
to recognize a polygamous marriage, the
court described marriage as follows, at
p. 133:
Marriage has been
well said to be something more than a contract,
either religious or civil — to be an
Institution. It creates mutual rights and
obligations, as all contracts do, but beyond
that it confers a status. The position
or status of "husband" and "wife"
is a recognised one throughout Christendom:
the laws of all Christian nations throw
about that status a variety of legal incidents
during the lives of the parties, and induce
definite rights upon their offspring.
What, then, is the nature of this institution
as understood in Christendom? Its
incidents vary in different countries, but
what are its essential elements and invariable
features? If it be of common acceptance
and existence, it must needs (however varied
in different countries in its minor incidents)
have some pervading identity and universal
basis. I conceive that marriage, as
understood in Christendom, may for this
purpose be defined as the voluntary union
for life of one man and one woman, to the
exclusion of all others.
[Emphasis added.]
[51] This definition of
marriage was referred to and adopted in
Corbett v. Corbett, [1970] 2 All E.R. 33
(Probate, Divorce and Admiralty Div.), (where
the court nullified a marriage involving
a transgendered individual), and in Keddie
v. Currie (1991), 60 B.C.L.R. (2d) 1 (C.A.),
at p. 14 (where this Court expressly adopted
the definition of marriage in Hyde, albeit
in relation to a discussion of common law
marriages).
[52] After considering
the appellants' arguments that the definition
of marriage in Hyde should not be treated
as either binding or persuasive, or as an
expression of the common law, and that the
adoption of that definition in later cases
constituted no more than obiter dicta, the
trial judge made the following comments
(at paras. 82-83):
I do not construe
Hyde to create any new judicial characterization
of the construct of marriage but to accurately
state the law as it was before 1866 and,
in the absence of any indication to the
contrary, as it was at November 19, 1858.
Section 6 of the
Marriage Act, R.S.B.C. 1996, c. 282 provides
that the law of British Columbia with respect
to the validity of marriage is the common
law of England at November 19, 1858 until
that law is changed by statute. Because
no legislative body has attempted to change
the common law of England as it was at the
relevant date, "marriage" in British
Columbia in 2001 is a relationship that
may only subsist between one man and one
woman.
[53] The Ontario Divisional
Court in Halpern also found that marriage
at common law meant the marriage between
a man and a woman, agreeing in that respect
with the majority in Layland v. Ontario
(Minister of Consumer & Commercial Relations)
(1993), 14 O.R. (3d) 658 (Ont. Div. Ct),
which, in turn, adopted the definition of
marriage set forth in Hyde, which was also
adopted in North v. Matheson (1974), 52
D.L.R. (3d) 280 (Man. Co. Ct).
[54] In Hendricks, Madam
Justice Lemelin briefly discussed the issue
of whether there was a common law bar to
same-sex marriage, although she did so in
the context of the legislative provisions
which were at issue before her. In
the result, she concluded as follows (at
para. 94):
When the Constitution
Act, 1867 was enacted, marriage was the
union of a man and a woman, whether under
the common law or under the Civil Code of
Lower Canada. In any event, how could
the situation have been otherwise when our
law made homosexuality a criminal offence
until 1969?
[55] In my view, the appellants'
submission that there was no common law
bar to same-sex marriage cannot be sustained.
As Professor Lahey acknowledged in
her factum, the issue of same-sex marriage
was unlikely to have arisen in the face
of the criminal sanctions in place in both
England and Canada. The adoption by
Canadian courts of the definition of marriage
in Hyde and Corbett did not arise in the
context of same-sex marriages, but there
is little doubt that the definition was
in accord with the law in England and in
Canada. The Keddie decision, in particular,
discusses the history of marriage in England
in some detail, and it is clear from that
discussion that marriage was an opposite-sex
institution and recognized by the courts
as such.
[56] In the result, I
am satisfied that the trial judge was correct
in finding that there was a bar to same-sex
marriage at common law by virtue of the
common law definition of marriage as "the
voluntary union for life of one man and
one woman, to the exclusion of all others."
D. A Plain Reading of the Marriage
Act
[57] The appellants submitted
that, on a plain reading of the Marriage
Act, and particularly s. 7 of that Act (quoted
at para. 48, supra), it is apparent there
is no prohibition to the issuance of marriage
licences to same-sex couples. Section
7 refers to the solemnization of marriage
"between any 2 persons neither of whom
is under a legal disqualification to contract
marriage."
[58] The full answer to
that argument is that there is a common
law bar to same-sex marriage which operates
as a legal disqualification to contract
marriage within the meaning of s. 7. In
other words, by virtue of the common law
definition of marriage, same-sex couples
are "under a legal disqualification
to contract marriage".
E.
The Constitutional Issue
[59] Before addressing
the appellants' arguments based on the Charter
and Charter values, it is necessary to deal
with the trial judge's critical finding
that neither the provincial nor federal
governments has the power to alter the common
law definition of marriage, but that a constitutional
amendment would be required. This
finding underlies much of the trial judge's
reasoning, and impacts directly on his Charter
analysis, particularly his s. 1 analysis.
[60] The appellants and
both the AGC and the AGBC took the position
before the trial judge that the issue of
whether two individuals of the same sex
could marry was an issue relating to the
capacity to marry, and that issues relating
to capacity fell within Parliament's jurisdiction
to legislate concerning "Marriage
and Divorce" under s. 91(26).
It is apparent, however, that the trial
judge did not see the issue that way, as
evidenced by the following extract from
his reasons for judgment (at paras. 100
and 101):
In my opinion,
a question that arises in the context of
these petitions is whether same-sex relationships
fall within the class of "Marriage
and Divorce" so as to be subject to
governance by Parliament, or within the
class of Civil Rights so as to be subject
to governance by the province. If
such relationships are neither matters of
marriage nor civil rights, they may be governed
by Parliament for the peace, order and good
government of Canada.
This answer to
the question is important because the petitioners
seek remedies that presuppose the meaning
of "marriage" can be changed by
Parliament. As I see it, the assumption
around which the debate before me has been
framed is that Parliament is empowered to
enact legislation to define a head of power
as opposed to enacting legislation under
the authority of a head of power.
This distinction is important.
[Emphasis added.]
[61] As earlier noted,
the trial judge's resolution of the issue,
as he reframed it, was summarized at paras.
10-11 of his reasons:
Parliament may not enact legislation to
change the legal meaning of marriage to
include same-sex unions. Under s.
91(26) of the Constitution Act, 1867, Parliament
was given exclusive legislative jurisdiction
over marriage, a specific kind of legal
relationship. By attempting to change
the legal nature of marriage, Parliament
would be self-defining a legislative power
conferred upon it by the Constitution rather
than enacting legislation pursuant to that
power. Parliament would be attempting to
amend the Constitution without recourse
to the amendment process provided by the
Constitution Act, 1982. Alternatively,
Parliament would be attempting to enact
legislation in respect of civil rights exclusively
within the legislative authority of the
province.
"Marriage",
as a federal head of power with legal meaning
at confederation, is not amenable to Charter
scrutiny. One part of the Constitution
may not be used to amend another.
[62] In essence, what
the trial judge found was that the meaning
of "marriage" in s. 91(26), "Marriage
and Divorce", was fixed for all time
as of 1867, and that any attempt by Parliament
to change the meaning of marriage to something
other than what it meant in 1867 would constitute
a unilateral amendment to the Constitution.
Unlike its jurisdiction under other heads
of power under s. 91, Parliament could not
legislate to expand or otherwise change
the definition of marriage, because to do
so would render it something other than
marriage in s. 91(26).
[63] The trial judge expressly
rejected the submission of the parties that
the question of whether same-sex couples
can marry is a question dealing with capacity
to marry. In so doing, he distinguished
the decisions of North v. Matheson, supra,
and Layland, supra, on the basis that the
courts in those cases "assumed, without
analysis, that the inability of persons
of the same sex to marry was a question
of capacity." The trial judge
stated that those decisions were not binding
on him and that he did not find them persuasive.
He went on to state (at para. 119):
In my opinion,
the fact that persons of the same sex may
not legally marry is not a question of capacity.
Rather the inability of same-sex couples
to marry results from the fact that, by
its legal nature, marriage is a relationship
which only persons of opposite sex may formalize.
The requirement that parties to a legal
marriage be of opposite sex goes to the
core of the relationship and has nothing
to do with capacity.
[64] He also stated that
it was open to the provincial government
to recognize and formalize same-sex "relationships"
(as opposed to same-sex "marriages")
as a matter of civil rights within British
Columbia.
[65] Finally, the trial
judge concluded that the Charter could not
be used to override the essential meaning
of marriage in s. 91(26). The trial
judge found support for this view in Reference
Re Bill 30, An Act to Amend the Education
Act (Ont.) [1987] 1 S.C.R. 1149, and Adler
v. Ontario, [1996] 3 S.C.R. 609. I
will discuss these cases later in these
reasons in relation to the Charter issues.
[66] The trial judge's
views of the immutability of the meaning
of the word "marriage" in s. 91(26)
were expressly rejected by the courts in
both Halpern and Hendricks.
[67] In Halpern, Mr. Justice
LaForme framed the constitutional issue
which formed the foundation of the trial
judge's decision in this case as follows
(at paras. 99-101 of his reasons):
The submission
of the Association [of Marriage and the
Family] on this court's lack of jurisdiction
is founded in the language of the Constitution
Act, 1867. Specifically, it argues
that sections 91(26) and 92(12) of the Constitution
Act - when using the word "marriage"
- contain within that word a clear, constitutionally
enshrined meaning: "the union between
a man and a woman". The argument
then goes on to assert that, therefore any
change to the meaning of the word "marriage"
found in sections 91 and 92 requires a formal
amendment to the Constitution Act.
Simply put, the
Association argues that the meaning of the
word "marriage" contained in the
Constitution Act, expressly limits Parliament
to legislating under that head of power
to unions between one man and one woman.
It goes on to say that the power granted
to Parliament under that head of legislative
authority does not authorize it to legislate
with respect to unions between members of
the same sex. Similarly, under s.
92(12), a province can only solemnize marriages
between a man and a woman; a province does
not possess the constitutional power to
solemnize "marriages" between
members of the same sex.
In sum, the Association
submits that the impediment to the applicants'
claim for the legal recognition of marriage
between same-sex couples does not lie in
federal or provincial legislation - or in
the common law - but in the language of
the constitution itself. Respectfully,
I disagree.
[68] The Associations'
submission, summarized in these paragraphs,
was essentially the view adopted by the
trial judge here. The only participants
who support that position on these appeals
are the B.C. Coalition and the Interfaith
Coalition.
[69] In Halpern, Mr. Justice
LaForme observed that adopting the Association's
view would freeze the meaning of the word
"marriage" to the meaning it held
for the framers of the Constitution in 1867.
In rejecting this view, Mr. Justice LaForme
stated, at para. 106 of his reasons:
Given that "marriage"
refers only to a topic or "class of
subjects"39 of potential legislation,
it cannot contain an internal frozen in
time meaning that reflects the presumed
framers' intent as it may have been in 1867.
It must — as the authorities have proclaimed
— be interpreted "as describing
a subject for legislation, not a definite
object." Canadian courts have
repeatedly declared that the language of
the B.N.A. Act "must be given a large
and liberal interpretation" recognizing
"the magnitude of the subject with
which it purports to deal in very few words".40
[Footnotes omitted.]
[70] After providing examples
to illustrate the extent of his disagreement
with the views of the trial judge in this
case, Mr. Justice LaForme concluded his
analysis on this point at para. 123 of his
reasons:
In the end —
and as a necessary preliminary matter —
I find that the word "Marriage"
used in the Constitution Act, 1982 does
not of itself limit the ability of Parliament
to legislate same-sex marriages under head
s. 91(26). That is, it does not contain
within it a definition that has the force
of constitutional entrenchment, and thereby
requires constitutional amendment to vary.
[71] I agree with Mr.
Justice LaForme's analysis of this issue,
which is consistent with, and elaborated
upon, in the submissions of the appellants,
the AGC and the AGBC. (I also note
that Madam Justice Lemelin rejected the
trial judge's views on this issue at paras.
109-122 of her reasons for judgment.)
[72] I will address the
trial judge's related finding that the Charter
cannot be used to "trump" or invalidate
the constitutionalized meaning of the word
"marriage" in s. 91(26) later
in these reasons.
F.
Charter Values
[73] Counsel for the appellants
have urged this Court to analyze the common
law bar to same-sex marriage based on Charter
values. In so doing, they seek to
avoid the full analysis required where legislation
is under Charter scrutiny. They submit
that where the common law (not legislation)
is the subject of a Charter challenge, the
court is entitled to base its analysis on
Charter values, and to grant a remedy without
engaging in a full s. 1 analysis.
One of the authorities upon which the appellants
rely in that regard is R. v. Swain, [1991]
1 S.C.R. 933. There, in considering
a common law rule which was found to violate
s. 7 of the Charter, Chief Justice Lamer
stated, at p. 978:
Before turning
to s. 1, however, I wish to point out that
because this appeal involves a Charter challenge
to a common law, judge-made rule, the Charter
analysis involves somewhat different considerations
than would apply to a challenge to a legislative
provision. For example, having found
that the existing common law rule limits
an accused's rights under s. 7 of the Charter,
it may not be strictly necessary to go on
to consider the application of s. 1....
[I]t could, in my view, be appropriate to
consider at this stage whether an alternative
common law rule could be fashioned which
would not be contrary to the principles
of fundamental justice.
If a new common
law rule could be enunciated which would
not interfere with an accused person's right
to have control over the conduct of his
or her defence, I can see no conceptual
problem with the Court's simply enunciating
such a rule to take the place of the old
rule, without considering whether the old
rule could nonetheless be upheld under s.
1 of the Charter. Given that the common
law rule was fashioned by judges and not
by Parliament or a legislature, judicial
deference to elected bodies is not an issue.
If it is possible to reformulate a common
law rule so that it will not conflict with
the principles of fundamental justice, such
a reformulation should be undertaken.
[74] In the result, however,
the court applied the formal s. 1 analysis
set forth in R. v. Oakes, [1986] 1 S.C.R.
103. (See also R. v. Robinson, [1996]
1 S.C.R. 683, where the court also engaged
in a full s. 1 analysis in relation to a
common law rule which was found to have
breached the Charter.)
[75] The AGC and AGBC
submit that when state action is engaged,
as here, by the refusal of a Ministry official
to issue marriage licences to same-sex couples,
the court should engage in a full Charter
analysis. They also submit that when
state action is challenged, deference should
be accorded to the state, both in the nature
of the analysis undertaken, and, more particularly,
in determining the appropriate remedy in
the event of a breach of the Charter or
Charter values. The respondents say
this is so whether the state action is founded
on legislation or, as here, on the common
law.
[76] This issue was also
raised in Halpern, where the court was presented
with similar arguments to those presented
here. Mr. Justice LaForme agreed with
the appellants that it was open to the court
to consider the challenge to the common
law bar to same-sex marriage by applying
Charter values, rather than by a full Charter
analysis, including the application of the
s. 1 Oakes test. In the result, however,
he adopted the more conservative route of
engaging in a full Charter analysis.
Even applying this more stringent test,
he found that the common law bar to same-sex
marriage breached s. 15 of the Charter and
was not saved under s. 1. Mr. Justice
Blair and Associate Chief Justice Smith
(now Chief Justice Smith) agreed with his
approach in that regard.
[77] I agree with the
appellants and with the court in Halpern
that this Court has a choice as to whether
it will engage in a full Charter analysis
where the challenge is to the common law
rather than to a legislative provision.
In my view, however, the more conservative
approach chosen by the trial judge in this
case and by the court in Halpern is the
more appropriate approach. My conclusion
in that regard turns on the fact that, like
the trial judge, I do not view the appellants'
request for relief in these appeals as a
request for a "mere" incremental
change in the law.
[78] I agree with Mr.
Justice Blair in Halpern that the relief
requested, if granted, would constitute
a profound change to the meaning of marriage,
and would be viewed as such by a significant
portion of the Canadian public, whether
or not it supported the change. It
would certainly be viewed as a profound
change by those who hold religious beliefs
which are incompatible with an acceptance
of same-sex marriages. While an informed
member of the public would be aware of the
significant changes that have taken place
over the last several years in expanding
the rights and obligations of same-sex couples,
many members of the public have regarded
those changes, in themselves, as highly
controversial. On the other hand,
many others have viewed them as simply a
long-overdue recognition of the need to
provide equality to those for whom equality
has, in the past, been denied.
[79] Whatever one's point
of view, the fact that previous legislative
changes and changes to the common law have
expanded the rights of same-sex couples
does not make the further expansion of those
rights any less significant to those who,
by reason of religious beliefs, or otherwise,
view these changes as momentous. Applying
the rigour of a full Charter analysis to
a challenge to the law in these circumstances
recognizes the importance of the rights
at stake and the significance of those rights
not only to the appellants, but to other
members of society who have an interest
in this issue.
[80] I will say more about
the question of deference to Parliament
when I address the issue of remedies later
in these reasons.
G. Section 15 of the Charter
[81] Section 15 of the
Charter provides:
15. (1) Every individual is
equal before and under the law and has the
right to the equal protection and equal
benefit of the law without discrimination
and, in particular, without discrimination
based on race, national or ethnic origin,
colour, religion, sex, age or mental or
physical disability.
(2) Subsection (1) does not preclude
any law, program or activity that has as
its object the amelioration of conditions
of disadvantaged individuals or groups including
those that are disadvantaged because of
race, national or ethnic origin, colour,
religion, sex, age or mental or physical
disability.
[82] The trial judge dealt
with the Charter issues in the alternative,
in the event he was in error in finding
that Parliament did not have the power to
legislate with respect to same-sex marriages.
In finding that the common law bar to same-sex
marriage breached s. 15 of the Charter,
he applied the analysis set forth in Law
v. Canada (Minister of Employment and Immigration),
[1999] 1 S.C.R. 497. He concluded,
first, that the common law bar to same-sex
marriage subjected the appellants to differential
treatment, in that same-sex couples do not
have the choice to marry which is available
to opposite-sex couples. Secondly,
he concluded that the differential treatment
was based on an analogous ground; namely,
sexual orientation. (That is not disputed
by the respondents.) Thirdly, he concluded
that the differential treatment discriminated
against the appellants in a substantive
sense. In arriving at that conclusion,
the trial judge stated, in part (at paras.
174-78):
In terms of the
factors identified in Law, Canadian courts
accept the fact that gays and lesbians have
been disadvantaged by stereotyping and prejudice.
There is a need in the gay and lesbian community
to have society acknowledge the value and
reality of same-sex unions. The distinction
between opposite-sex and same-sex relationships
in the marriage context excludes the latter
from a social and legal institution of considerable
importance and tends to perpetuate the stereotypical
and frequently critical community view of
gays and lesbians.
The Attorney General
of Canada says that across cultures, opposite-sex
marriage is intended to "complement
nature with culture for the sake of reproduction
and the intergenerational cycle".
She says "the universal norm of marriage
has been a culturally approved opposite-sex
relationship intended to encourage the birth
(and rearing) of children". The
Attorney General says legal marriage does
not discriminate in a substantive sense
because gays and lesbians cannot achieve
the ends for which marriage exists.
As I appreciate
their position, the petitioners say that
marriage in Canadian society can no longer
be said to exist for a purpose that is uniquely
heterosexual. Rather it is a means
of acknowledging a committed personal relationship
and the sex of the partners is not material.
The legislative
changes in British Columbia, many other
provinces, and Parliament that have removed
many of the historic legal, economic and
social differences between married, unmarried
opposite-sex, and same-sex couples while
leaving the legal nature of marriage intact,
have sharpened the focus on the fact that
marriage is a relationship reserved for
partners of opposite sex. Social changes
have diminished the importance of marriage
to some extent. Advances in alternative
means of conception have decreased reliance
upon marriage as an opposite-sex relationship
required for the purpose of procreation.
Children are conceived by, born to, and
raised by opposite-sex, unmarried couples.
They are also adopted and raised by same-sex
couples.
Viewed in the context
of legislative change and social and cultural
evolution, and notwithstanding the material
distinction between opposite-sex and same-sex
couples with respect to reproductive capacity,
the omission to provide some form of legal
status for same-sex couples enhances, rather
than diminishes, the stereotypical view
that same-sex relationships are less important
or valuable than opposite-sex relationships.
There is now sufficient practical similarity
between the economic and social consequences
of opposite-sex and same-sex relationships
that affording one but not the other the
opportunity to acquire a legal and formal
status discriminates in the substantive
sense of the word.
[83] The respondents,
supported by the B.C. Coalition and the
Interfaith Coalition, submit that the trial
judge erred in his s. 15 analysis.
[84] Like the trial judge
in this case, the court in Halpern found
that the common law definition of marriage
breached s. 15 of the Charter. While
I agree with the trial judge's summary of
the s. 15 analysis just quoted, I prefer
the more extensive analysis in Halpern.
Since Halpern addresses the s. 15 issues
raised in this appeal, I will refer to it
at some length.
[85] In his s. 15 analysis,
Mr. Justice Blair provided an overview of
the nature of marriage, both historically,
and in its present-day civil context.
His review was based, in part, on the affidavits
filed in that case, most of which are also
found in the materials filed in this case.
I would adopt Mr. Justice Blair's historical
review of marriage set out at paras. 39-84
of his reasons. In so doing, I recognize
that his review cannot be comprehensive,
given the breadth of the subject, and the
limited materials available to the court.
Rather than repeat Mr. Justice Blair's analysis,
I will simply highlight certain aspects
of it.
[86] In the course of
his discussion, Mr. Justice Blair noted
that the anthropological, sociological and
historical materials filed revealed that
"marriage" has almost universally
been viewed as a monogamous union between
a man and a woman in which procreation was
emphasized. There were exceptions
to this in some societies at certain points
in time, but those exceptions never became
the norm. Mr. Justice Blair also noted,
however, that the evidence indicated that
"marriage is not a static institution
within any society" but "evolves
as society changes" (para. 49). At
para. 56 of his reasons, Mr. Justice Blair
referred to the evidence of some of these
changes, particularly in the twentieth century:
That there has
been a sea-change in laws and attitudes
relating to marriage and the family in the
past century is recognized by Professor
Witte at the conclusion of his evidence
regarding what he refers to as the Enlightenment
Contractarian model of marriage. He
states (at paras. 60-61):
In the early part
of the twentieth century, sweeping new laws
were passed to govern marriage formalities,
divorce, alimony, marital property, wife
abuse, child custody, adoption, child support,
child abuse, juvenile delinquency, education
of minors, among other subjects. Such
sweeping legal changes had several consequences.
Marriages became easier to contract and
easier to dissolve. Wives received
greater independence in their relationships
outside the family. Children received
greater protection from the abuses, and
neglect of their parents, and greater access
to benefit rights. And the state eclipsed
the church as the principal external authority
governing marriage and family life.
The Catholic sacramental concept of the
family governed principally by the church
and the Protestant concepts of the family
governed by the church and broader Christian
community began to give way to a new privatist
concept of the family whereby the wills
of the marital parties became primary.
Neither the church, nor the local community,
nor the paterfamilias could override the
reasonable expressions of will of the marital
parties themselves.
In the past three
decades, the Enlightenment call for the
privatization of marriage and the family
has come to greater institutional expression.
Prenuptial contracts, determining in advance
the respective rights and duties of the
parties during and after marriage, have
gained prominence. No-fault unilateral
divorce statutes are in place in virtually
every state. Legal requirements of
parental consent and witnesses to marriage
have become largely dead letters.
The functional distinction between the rights
of the married and the unmarried has been
narrowed by a growing constitutional law
of sexual autonomy and privacy. Homosexual,
bisexual, and other intimate associations
have gained increasing acceptance at large,
and at law. [Emphasis of Blair R.S.J.]
[87] After briefly reviewing
the historical basis of marriage, Mr. Justice
Blair turned to a view of what marriage
is today. He linked the relevance of that
discussion to a s. 15 analysis at paras.
60-61 of his reasons:
If the courts are
to examine the common law definition of
marriage through the prism of Charter rights
and values, it seems to me they must recognize
and appreciate the changes that have occurred
over the centuries, and more rapidly in
recent years, in the attitudes of society
towards the family, marriage and relationships,
as outlined above. To do otherwise
is to abandon the purpose of s. 15 —
which is to promote equality and prevent
discrimination arising from such ills as
stereotyping, prejudice and historical wrongs
— and to fail to consider the common
law principle under review in a contextual
fashion. As noted already, the Courts
are mandated to take a purposive and contextual
approach to the analysis and interpretation
of s. 15 equality rights: Law v. Ontario
(Minister of Employment and Immigration),
supra.
Given this background
and dramatically shifting attitudes towards
marriage and the family, I have a great
deal of difficulty accepting that heterosexual
procreation is such a compelling and central
aspect of marriage in 21st century post-Charter
Canadian society that it — and it alone
— gives marriage its defining characteristic
and justifies the exclusion of same-sex
couples from that institution. It
is, of course, the only characteristic with
which such couples are unable to conform
(and even that inability is changing).
[88] It is apparent from
the trial judge's reasons in this case,
that here, as in Halpern, the AGC, B.C.
Coalition and Interfaith Coalition emphasized
their view that the most fundamental and
essential defining characteristic of marriage
is heterosexual procreation, and, to a lesser
extent, heterosexual child-rearing. (Several
of the experts' affidavits use the word
"procreation" to include child-rearing.)
As Professor Lahey noted in her submissions,
there has been some "shift" in
the position of these participants on appeal,
but only to the extent of clarifying that
they do not rely on heterosexual procreation
as the only significant aspect of marriage.
They recognize that marriage fulfills other
societal needs, including mutual care and
support, companionship, and economic interdependency.
[89] On this appeal, counsel
for the B.C. Coalition (supported by the
Interfaith Coalition) stated that his clients'
position with respect to the applicability
of s. 15 of the Charter was concisely stated
by Mr. Justice Blair at para. 80 of his
reasons, and then erroneously rejected at
paras. 81-84 inclusive. Paragraph
80 states:
Whether one approaches
"marriage" from the classical
perspective based upon the narrow basis
that heterosexual procreation is its fundamental
underpinning and what makes it "unique
in its essence, that is, its opposite sex
nature", or whether one approaches
it from a different perspective, is pivotal
to the s. 15 analysis, however. If
one accepts the former view as the starting
premise, there is little debate, it seems
to me. The institution of marriage
is inherently and uniquely heterosexual
in nature. Therefore, same-sex couples
are not excluded from it on the basis of
a personal characteristic giving rise to
differential treatment founded upon a stereotypical
difference. Same-sex couples are simply
incapable of marriage because they cannot
procreate through heterosexual intercourse.
Thus it is a distinction created by the
nature of the institution itself which precludes
homosexuals from access to marriage, not
a personal characteristic or stereotypic
prejudice. The equality provisions
of s. 15 are not violated, and even if they
were, the same analysis would justify the
law in preserving the institution for heterosexual
couples and therefore save the classic definition
of "marriage" on a s. 1 analysis.
[90] Paragraphs 81-84
contain Mr. Justice Blair's response to
this argument:
On the other hand,
once it is accepted that same-sex unions
can feature the same conjugal and other
incidents of marriage, except for heterosexual
intercourse, and if heterosexual procreation
is no longer viewed as the central characteristic
of marriage, giving it its inherently heterosexual
uniqueness, the s. 15 argument must succeed.
If heterosexual procreation is not essential
to the nature of the institution, then the
same-sex couples' sexual orientation is
the only distinction differentiating heterosexual
couples from homosexual couples in terms
of access to the institution of marriage.
For all of the reasons articulated by Mr.
Justice LaForme, this differentiation is
discriminatory of the same-sex couples'
equality rights as set out in s. 15 of the
Charter and cannot stand.
First, the common
law definition of marriage draws a formal
distinction between the Applicant Couples
and the couples "married" by the
MCCT [Metropolitan Community Church of Toronto],
on the one hand, and heterosexual couples,
on the other hand, on the basis of their
personal characteristics, i.e., their sexual
orientation. Secondly, the claimants
are subject to differential treatment on
the basis of a ground of discrimination
which has been held to be a ground analogous
to those enumerated in s. 15, namely, sexual
orientation. Finally, the differential
treatment of the claimants discriminates
against them in a substantive sense, bringing
into play the purpose of s. 15(1) of the
Charter in remedying such ills as prejudice,
stereotyping and historical disadvantage:
see, Law v. Canada (Minister of Employment
and Immigration), supra, per Iacobucci J.
at p. 524 [S.C.R.], adopted by Cory J. and
Iacobucci J. in M. v. H., supra, at pp.
46-47 [S.C.R.].
The evidence supports
a conclusion that "marriage" represents
society's highest acceptance of the self-worth
and the wholeness of a couple's relationship,
and, thus, touches their sense of human
dignity at its core.
The equality provisions
of s. 15(1) of the Charter are therefore
violated.
[91] Mr. Justice Blair's
analysis of s. 15, summarized in these passages,
builds upon Mr. Justice LaForme's s. 15
analysis which, in turn, was accepted by
Associate Chief Justice Smith in her concurring
reasons. Their reasons with respect
to the s. 15 analysis are also consistent
with those of Madam Justice Lemelin, with
necessary modifications arising from the
fact that she was dealing with legislative
barriers to marriage, rather than a barrier
created by the common law definition of
marriage. I do not find it useful
to repeat their analyses in my reasons.
[92] As earlier stated,
I prefer the more extensive and contextual
analysis of the s. 15 issue engaged in by
the courts in Halpern and Hendricks to the
more limited analysis of the trial judge
in this case. I agree with the trial
judge's conclusion under s. 15, and with
his overall application of the principles
set forth in Law, summarized at para. 82,
supra. I note however, that while
the trial judge's s. 15 analysis does
not appear to accept the emphasis placed
by the AGC, B.C. Coalition and Interfaith
Coalition on the procreational significance
of marriage, he relies almost entirely on
the procreational function of marriage in
his s. 1 Oakes analysis. As will become
apparent, I do not find his s. 1 analysis
persuasive.
[93] Before leaving the
s. 15 issue, I will comment on one extract
from the authorities upon which significant
reliance was placed by AGC, the B.C. Coalition
and the Interfaith Coalition. That
reference is to the remarks of Mr. Justice
La Forest in Egan v. Canada, [1995]
2 S.C.R. 513 at paras. 21 and 25 of that
decision:
My colleague Gonthier
J. in Miron v. Trudel [[1995] 2 S.C.R. 418]
has been at pains to discuss the fundamental
importance of marriage as a social institution,
and I need not repeat his analysis at length
or refer to the authorities he cites.
Suffice it to say that marriage has from
time immemorial been firmly grounded in
our legal tradition, one that is itself
a reflection of long-standing philosophical
and religious traditions. But its
ultimate raison d'être transcends
all of these and is firmly anchored in the
biological and social realities that heterosexual
couples have the unique ability to procreate,
that most children are the product of these
relationships, and that they are generally
cared for and nurtured by those who live
in that relationship. In this sense,
marriage is by nature heterosexual. It would
be possible to legally define marriage to
include homosexual couples, but this would
not change the biological and social realities
that underlie the traditional marriage.
* * *
It is the social unit that uniquely has
the capacity to procreate children and generally
care for their upbringing . . . .
[94] There were five sets
of reasons in Egan. In the passage
quoted above, Mr. Justice La Forest spoke
for a minority. The case concerned
the claim of a same-sex partner for spousal
benefits under the Old Age Security Act,
R.S.C. 1985, c. O-9. By a 5:4 majority,
the court held that the limitation in the
definition of "spouse" in that
Act to a person of the opposite sex was
constitutional. Mr. Justice Iacobucci,
(speaking for himself and Mr. Justice Cory,
in dissent), made a point of stating that
the case was not to be taken as constituting
a challenge to the traditional common law
or statutory concept of marriage.
Further, the passage from Mr. Justice La Forest's
reasons, although emphasizing the aspects
of procreation and child-rearing relied
on by the AGC and two of the intervenors,
does not purport to limit the ability of
Parliament to change the definition of what
La Forest J. referred to as "the traditional
marriage". It is not disputed
that heterosexual marriages represent the
tradition; the question is whether that
tradition must be re-evaluated and altered
in light of the Charter. For the reasons
contained in this judgment, I have joined
with other jurists in concluding that the
answer to that question is "yes".
[95] In summary, I agree
with the trial judge that the appellants
have established that the common law definition
of marriage (which operates as a common
law bar to same-sex marriage) breaches their
right to equality under s. 15 of the Charter.
[96] Before turning to
a s. 1 analysis, I will refer briefly to
the other Charter breaches upon which the
appellants rely.
H. Other Alleged Charter Breaches
[97] The appellants allege
that the common law bar to same-sex marriage
also breaches their rights under s. 2 (freedom
of conscience and religion, freedom of expression
and freedom of association); s. 6 (mobility
rights); s. 7 (right to life, liberty and
security of the person and the right not
to be deprived thereof except in accordance
with the principles of fundamental justice);
and s. 28 (rights guaranteed equally to
both sexes).
[98] The trial judge found
that the appellants had not established
a breach of their rights under any of these
provisions.
[99] None of the parties
addressed these alleged breaches of the
Charter in their oral arguments. Rather,
they were content to rely upon the submissions
set forth in their factums. The trial
judge spent little time on these issues.
[100]
Since I have found a breach of the appellants'
rights under s. 15 of the Charter and since,
for the reasons I am about to give, I have
concluded that this breach is not justifiable
under s. 1 of the Charter, I do not find
it necessary to deal with the other alleged
breaches. My failure to comment on
those issues should not be taken as either
an acceptance or a rejection of the appellants'
submissions in that regard.
I. Section 1 of the Charter
[101]
Section 1 of the Charter provides:
The Canadian Charter of Rights and Freedoms
guarantees the rights and freedoms set out
in it subject only to such reasonable limits
prescribed by law as can be demonstrably
justified in a free and democratic society.
[102]
The trial judge found that the breach of
the appellants' s. 15 equality rights could
be justified under s. 1 of the Charter.
He approached his analysis of this issue
from two perspectives. First, he referred
back to his original constitutional analysis
whereby he concluded that "marriage"
in s. 91(26) could only mean a marriage
between a man and a woman since that was
its meaning both prior to and at the time
of Confederation. He then relied on
that analysis, supported by his interpretation
of the Bill 30 and Adler decisions, to justify
his ultimate conclusion that the common
law definition of marriage was a reasonable
limit on the appellants' s. 15 Charter rights.
His views with respect to this aspect of
his s. 1 analysis are reflected in the following
passages at paras. 199-200 of his decision:
Quite apart from
the kind of analysis approved by the Supreme
Court of Canada in Oakes [supra] and Thomson
[infra], the limitation [of the appellants'
s. 15 equality rights] is justified by the
Constitution itself. There is no doubt
that its framers and the Parliament of England
knew and comprehended the nature of marriage
in 1867. As opposed to the general
subject of family, it was marriage and divorce
that were considered matters of such national
importance that exclusive jurisdiction over
them should be assigned to the federal Parliament.
The Constitution, itself, expressed an intention
that marriage was an issue of pressing and
substantial national importance and differentiation
and discrimination inherent in the fact
that marriage was then, and still is, an
opposite-sex relationship would be permitted.
Section 52(1) of
the Constitution Act, 1867 provides that
the Constitution is the supreme law of Canada.
Under s. 91(26), Parliament was given plenary
power in relation to marriage, a construct
that is, by its nature, not inclusive of
everyone. Failure to rely on s. 1
to save the core nature of legal marriage
would result in one aspect of the Constitution
being used to limit a plenary power in respect
of which qualification was not intended.
I do not understand the law to be that the
Charter can be used to alter the head of
power under s. 91(26) so as to make marriage
something it was not when the various fields
of legislative authority were divided between
Parliament and the provinces.
[103]
The trial judge noted that, in Bill 30,
the Supreme Court of Canada found that s.
15 of the Charter could not be applied to
invalidate s. 93 of the Constitution Act,
1867. The trial judge concluded (at
para. 202) that:
By analogy, the
Charter cannot be used in an attempt to
eliminate the differences or distinctions
that must inevitably result as a consequence
of Parliament relying on the "Marriage
and Divorce" head of power under s.
91(26) to define some relationships, but
not others, as marriage.
[104]
The trial judge then went on to apply a
more traditional Oakes analysis to reach
the same conclusion. In that analysis, he
emphasized: the opposite-sex nature of marriage
as the norm within and across societies;
the biological reality that opposite-sex
couples may "as between themselves"
propagate the species, whereas same-sex
couples cannot; that marriage is the primary
means by which humankind perpetuates itself
in Canadian society; and the passage from
Mr. Justice La Forest's reasons in Egan,
quoted in part at para. 93, supra.
[105]
Ultimately, the trial judge concluded that
the salutary effects of retaining the common
law definition of marriage far outweighed
the deleterious effects of changing that
definition, particularly since, in his view,
the effect of recent legislative change
had narrowed or minimized the differences
between same-sex and opposite-sex relationships.
[106]
As earlier stated, I do not accept the trial
judge's conclusion that the definition of
marriage under s. 91(26) of the Constitution
Act, 1867 was fixed at that time, and for
all time, to mean marriage between a man
and a woman, subject only to constitutional
amendment. For that reason, it may
not be strictly necessary for me to deal
with his finding that s. 15 of the Charter
could not be used to invalidate what he
found to be the one and only meaning of
marriage under s. 91(26). Because
the trial judge viewed the Bill 30 and Adler
cases as strong support for his analysis,
however, I will deal with them here.
In so doing, I note that the B.C. Coalition
took the position at trial, and on appeal,
that these two cases were a "full answer"
to the claims of the appellants.
[107]
Bill 30 was a reference regarding the constitutionality
of legislation in Ontario designed to extend
provincial funding to senior grades of Roman
Catholic High Schools. The Ontario
government took the position that the Bill
was immune from Charter scrutiny (and, in
particular, immune from a s. 15 analysis)
because it represented an exercise by the
province of its legislative powers under
s. 93(1) of the Constitution Act, 1867 with
respect to denominational schools and, therefore,
was protected by s. 29 of the Charter.
Those provisions state:
93. In and
for each Province the Legislature may exclusively
make laws in relation to Education, subject
and according to the following provisions:—
(1) Nothing
in any such Law shall prejudicially affect
any Right or Privilege with respect to Denominational
Schools which any Class of Persons have
by Law in the Province at the Union:
. . .
(3) Where
in any Province a System of Separate or
Dissentient Schools exists by Law at the
Union or is thereafter established by the
Legislature of the Province, an appeal shall
lie to the Governor General in Council from
any Act or Decision of any Provincial authority
affecting any Right or Privilege of the
Protestant or Roman Catholic Minority of
the Queen's Subjects in relation to Education.
* * *
29. Nothing in this Charter abrogates
or derogates from any rights or privileges
guaranteed by or under the Constitution
of Canada in respect of denominational,
separate or dissentient schools.
[108]
In the result, Madam Justice Wilson, speaking
for the majority, accepted the government's
position and held that s. 93(1) was immune
from Charter scrutiny. She further
found that s. 93(1) was protected from Charter
scrutiny even without recourse to s. 29
of the Charter. The B.C. Coalition
places particular emphasis on the following
passage (at pp. 1197-99) of Madam Justice
Wilson's reasons as applying, by analogy,
to a Charter attack on what the trial judge
found to be the inherent meaning of "marriage"
in s. 91(26):
I have indicated that the rights or privileges
protected by s. 93(1) are immune from Charter
review under s. 29 of the Charter.
I think this is clear. What is less
clear is whether s. 29 of the Charter was
required in order to achieve that result.
In my view, it was not. I believe
it was put there simply to emphasize that
the special treatment guaranteed by the
constitution to denominational, separate
or dissentient schools, even if it sits
uncomfortably with the concept of equality
embodied in the Charter because not available
to other schools, is nevertheless not impaired
by the Charter. It was never intended,
in my opinion, that the Charter could be
used to invalidate other provisions of the
Constitution, particularly a provision such
as s. 93 which represented a fundamental
part of the Confederation compromise.
Section 29, in my view, is present in the
Charter only for greater certainty, at least
in so far as the Province of Ontario is
concerned.
To put it another
way, s. 29 is there to render immune from
Charter review rights or privileges which
would otherwise, i.e., but for s. 29 be
subject to such review. The question
then becomes: does s. 29 protect rights
or privileges conferred by legislation passed
under the province's plenary power in relation
to education under the opening words of
s. 93? In my view, it does, although
again I do not believe it is required for
this purpose. The Confederation compromise
in relation to education is found in the
whole of s. 93, not in its individual parts.
The section 93(3) rights and privileges
are not guaranteed in the sense that the
s. 93(1) rights and privileges are guaranteed,
i.e., in the sense that the legislature
which gave them cannot later pass laws which
prejudicially affect them. But they
are insulated from Charter attack as legislation
enacted pursuant to the plenary power in
relation to education granted to the provincial
legislatures as part of the Confederation
compromise. Their protection from
Charter review lies not in the guaranteed
nature of the rights and privileges conferred
by the legislation but in the guaranteed
nature of the province's plenary power to
enact that legislation. What the province
gives pursuant to this plenary power the
province can take away, subject only to
the right of appeal to the Governor General
in Council. But the province is master
of its own house when it legislates under
its plenary power in relation to denominational,
separate or dissentient schools. This
was the agreement at Confederation and,
in my view, it was not displaced by the
enactment of the Constitution Act, 1982.
As the majority of the [Ontario] Court of
Appeal concluded at pp. 575-76:
These educational
rights, granted specifically to the Protestants
in Quebec and the Roman Catholics in Ontario,
make it impossible to treat all Canadians
equally. The country was founded upon
the recognition of special or unequal educational
rights for specific religious groups in
Ontario and Quebec. The incorporation
of the Charter into the Constitution Act,
1982, does not change the original Confederation
bargain. A specific constitutional
amendment would be required to accomplish
that.
I would conclude,
therefore, that even if Bill 30 is supportable
only under the province's plenary power
and s. 93(3) it is insulated from Charter
review.
[Emphasis added.]
[109]
What is apparent from these passages, and
from the judgment of Wilson J. as a whole,
is that the reason s. 93 was immune from
Charter review was because of a pre-confederation
compromise ("bargain") designed
to protect the Roman Catholic minority in
Ontario and the Protestant minority in Quebec.
This compromise, which carried with it certain
built-in rights (and inequalities), was
entrenched in the Constitution Act, 1867.
Section 29 of the Charter did not grant
the right to immunity from Charter review
under s. 15 or otherwise; it simply recognized
and preserved the rights conferred by s.
93 in their historical context.
[110]
In my view, there is no valid analogy between
s. 93 and s. 91(26) in that regard.
It is true that there were constitutional
bargains made in the division of powers
between the federal and provincial governments
which were eventually reflected in the power
over "Marriage and Divorce" being
given to the federal government under s.
91(26), and the power over "The Solemnization
of Marriage in the Province" being
given to the provinces under s. 92(12).
However, these bargains had nothing to do
with the meaning of marriage or the capacity
to marry. They certainly did not have
anything to do with guaranteeing the opposite-sex
nature of marriage, remembering that same-sex
conduct at that time constituted a criminal
offence. It was accepted that the
federal government would control capacity
to marry. There was no suggestion
that the capacity to marry in 1867 was then,
and always would be, dictated by the status
quo with respect to capacity to marry as
it existed in 1867. By contrast, s.
93 expressly provided for a compromise which
necessarily discriminated on the basis of
religion, and effectively resulted in entrenched
inequality insofar as that provision was
concerned. Unlike s. 91(26), s. 93
did not simply confer the power to make
laws in relation to the subject-matter of
the section (education), it also conferred
rights which were not subject to the Charter.
[111]
I am not persuaded that the reasoning in
Bill 30 can be extended to apply to the
definition of marriage in s. 91(26) as suggested
by the B.C. Coalition and the Interfaith
Coalition.
[112]
In my view, the Adler decision, which also
involved a Charter challenge to s. 93, and
which explicitly applied the Bill 30 analysis,
adds nothing of significance to this discussion.
[113]
In the result, therefore, I am satisfied
that the Bill 30 and Adler decisions do
not support the trial judge's constitutional
analysis or his s. 1 analysis. In
particular, I find that these cases do not
support the trial judge's conclusion that
s. 15 of the Charter cannot apply to alter
the meaning of marriage at common law, or
that the effect of such a decision would
be an illegitimate use of one provision
of the Constitution (s. 15) to invalidate
another provision of the Constitution (s.
91(26)).
[114]
I turn, then, to an analysis of the trial
judge's application of the Oakes test as
his alternative basis for justifying the
limitation of the appellants' rights under
s. 15.
[115]
It is common ground that in applying a s.
1 analysis, the onus is on the party seeking
to uphold the limitation of a constitutional
right. The burden of proof, on a preponderance
of probability, must be applied rigorously.
The party bearing the burden of proof must
show that the limitation of the Charter
right is "demonstrably justified".
As Madam Justice McLachlin stated in RJR-MacDonald
Inc. v. Canada (Attorney General), [1995]
3 S.C.R. 199 at para. 128: "The process
is not one of mere intuition, nor is it
one of deference to Parliament's choice.
It is a process of demonstration."
Here, the onus and the burden of proof rested
on the AGC.
[116]
The nature of a s. 1 analysis has been set
forth, with minor variations, in numerous
authorities. In essence, the government
must establish that the impugned provision
(the common law definition of marriage which
precludes marriage between same-sex couples)
is a reasonable limit on the appellants'
s. 15 equality rights which is justifiable
in a free and democratic society.
In order to do so, the government must show
that the objective of the impugned provision
is "pressing and substantial".
The means chosen to achieve the objective
must also pass a three-part proportionality
test; namely that: (1) the means are rationally
connected to the objective; (2) the impugned
provision impairs the constitutionally protected
right no more than is necessary to achieve
the objective; and (3) the deleterious effects
of the impugned provision are proportional
both to their salutary effects and to the
importance of the objective which has been
identified as pressing and substantial.
These criteria will be applied in a contextual
manner and with varying degrees of rigour
depending on the context of the appeal.
(See, for example, the majority decision
of Mr. Justice Bastarache in Thomson Newspapers
Co. v. Canada (Attorney General), [1998]
1 S.C.R. 877.)
[117]
It is apparent in his analysis under s.
1, that the trial judge accepted the arguments
of AGC, the B.C. Coalition and the Interfaith
Coalition that the principal, albeit not
the sole, purpose or objective of marriage
is procreation and the perpetuation of mankind;
that this objective is pressing and substantial;
that retaining the opposite-sex definition
of marriage is proportional and necessary
to obtaining this objective; and that the
salutary effects of retaining this definition
more than offset the resultant denial of
the appellants' equality rights under s.
15 of the Charter.
[118]
After referring to evidence that opposite-sex
marriage had been the norm in societies
similar to Canada, and that marriage had
been an historically important institution,
the trial judge emphasized what he viewed
as the biological and procreative core of
marriage in the following passages from
his s. 1 analysis (at paras. 205-207 and
210-211):
While, in the recent
past, same-sex couples have been accorded
many of the rights and obligations previously
reserved for married couples, the one factor
in respect of which there cannot be similarity
is the biological reality that opposite-sex
couples may, as between themselves, propagate
the species and thereby perpetuate humankind.
Same-sex couples cannot.
I accept the petitioners'
submission that same-sex couples create
family units and discharge child-rearing
responsibilities much as opposite-sex couples
do. Perhaps the best evidence of that
is the fact that adoption laws in this and
other provinces have been amended to recognize
the needs and capabilities of same-sex couples.
I also accept the fact that numerous alternatives
to heterosexual intercourse have evolved
and continue to evolve in Canadian society
to facilitate procreation.
At the same time,
whatever views one holds of its other aspects,
it cannot be denied that marriage remains
the primary means by which humankind perpetuates
itself in our society. I reject the
petitioners' submissions that this is a
recent rationalization of the origin and
essential importance of marriage.
The state has a demonstrably genuine justification
in affording recognition, preference, and
precedence to the nature and character of
the core social and legal arrangement by
which society endures.
* * *
Other than the
desire for public recognition and acceptance
of gay and lesbian relationships, there
is nothing that should compel the equation
of a same-sex relationship to an opposite-sex
relationship when the biological reality
is that the two relationships can never
be the same. That essential distinction
will remain no matter how close the similarities
are by virtue of social acceptance and legislative
action.
I concur in the
submission of the Attorney General of Canada
that the core distinction between same-sex
and opposite-sex relationships is so material
in the Canadian context that no means exist
by which to equate same-sex relationships
to marriage while at the same time preserving
the fundamental importance of marriage to
the community.
[Emphasis added.]
[119]
As earlier noted, the AGC acknowledged that
there are other aspects of marriage which
are important, beyond what the trial judge
referred to as the "core" function
of marriage; namely, procreation.
The trial judge emphasized, however, that
it is the procreative potential of the partners
to an opposite-sex marriage which truly
distinguishes their relationships from those
of same-sex couples. For him, that
was the crucial factor which justified the
application of s. 1 to override the appellants'
equality rights.
[120]
The view that procreation is the over-riding
pressing and substantial concern governing
all stages of the s. 1 analysis was discussed,
and rejected, by the courts in Hendricks
and Halpern.
[121]
In Hendricks, Madam Justice Lemelin found
that the potential for procreation was not
a precondition for the civil matrimonial
bond. She noted that the definition
of families had changed significantly over
time; that some married couples opt not
to have children; some couples cannot have
children; proof of fertility is not a prerequisite
to marriage; and that homosexual couples
may now have children by means of medically-assisted
procreation and through adoption.
While these remarks were made in the context
of her s. 15 analysis, they are also valid
in relation to s. 1. At para. 149
of her decision, Lemelin J. stated:
Marriage is no longer necessarily defined
by the children born of the union.
Marriage is an exclusive, intimate and lasting
relationship of two persons who agree to
live together and to support each other.
Marriage is celebrated publicly and with
a certain solemnity. More than a contract,
it is an institution that one may not leave
without observing certain specific conditions
and without obtaining the judgment of a
court. Changes in society and the
general context of the family and technological
developments may indicate a greater flexibility
in the institution in better meeting the
needs of homosexual couples.
[122]
It is interesting to note that while the
trial judge emphasized many of the same
factors as Madam Justice Lemelin in his
s. 15 analysis, he then significantly diminished
the significance of those factors in his
s. 1 analysis.
[123]
In Halpern, Mr. Justice LaForme found that
the AGC had not met the onus upon it to
demonstrate that procreation was the essential
objective of marriage. In coming to
that conclusion, he referred to earlier
court decisions regarding the validity of
marriage and capacity, and concluded that
those decisions had not been founded on
the view that procreation was the main purpose
of marriage. Rather, he accepted the
applicants' position that the emphasis on
procreation as the justification for marriage
arose once same-sex couples began asserting
their claims for equal recognition of their
relationships.
[124]
I take a somewhat different approach to
this part of the s. 1 analysis than did
Mr. Justice LaForme. While it may
be that the authorities referred to by counsel
do not demonstrate that procreation has
been the essential object of marriage, there
is a body of evidence before the court which
indicates that, historically and across
cultures, procreation was viewed as such
an essential objective. The evidence
also shows, however, that the emphasis on
procreation as being at the core of marriage
has been displaced to a considerable degree
by the evolving view of marriage and its
role in society referred to by Mr. Justice
Blair and Madam Justice Lemelin in their
reasons for judgment. It is on that
basis that I find that procreation (including
the rearing of children) resulting from
sexual intercourse between a husband and
a wife, can no longer be regarded as a sufficiently
pressing and substantial objective that
it satisfies the first stage of the s. 1
analysis. Or, to view the first-stage
issue from a somewhat different perspective,
I am not satisfied that denying same-sex
couples the right to marry because of their
inability to procreate "as between
themselves" is a sufficiently pressing
and substantial objective to satisfy the
first stage of the s. 1 analysis.
[125]
Even if procreation is a sufficiently pressing
and substantial objective of marriage to
pass the first stage of the Oakes analysis,
however, I agree with Mr. Justice LaForme
that it is not sufficiently compelling to
justify the breach of the appellants' s.
15 rights under the balance of the s. 1
analysis.
[126]
LaForme J. found that there was no rational
connection between the importance of procreation
(and child-rearing) and the restriction
of same-sex marriage. He stated (at
para. 248 of his reasons) that:
There simply is no evidentiary basis to
support the proposition that granting same-sex
couples the freedom to marry would either
diminish the number of children conceived
by heterosexual couples, or reduce the quality
of care with which heterosexual couples
raise their children.
[127]
I agree. In this case, it is not clear
on what basis the trial judge assumed that
permitting same-sex couples to marry would
diminish the procreative potential for marriage
(unless he was responding to a perceived
threat that if same-sex couples were permitted
to marry, significant numbers of opposite-sex
couples would no longer do so). It
is also unclear why he downplayed the very
real fact that same-sex couples can "have"
and raise children, given technological
developments and changes in the law permitting
adoption. It is apparent, however,
that the trial judge was of the view that
permitting same-sex marriages represented
a significant threat to the institution
of marriage. In that regard, I agree
with the comments of Mr. Justice Iacobucci
at para. 211 of Egan, supra, (albeit in
relation to the question of providing economic
benefits to same-sex couples) where he said
he failed to see "how according same-sex
couples the benefits flowing to opposite-sex
couples in any way inhibits, dissuades or
impedes the formation of heterosexual unions."
[128]
Mr. Justice LaForme also found (at para.
250 of his reasons) that the restriction
on same-sex marriage failed the rational
connection test because it was both:
·
overinclusive in that it allows non-procreative
heterosexuals to marry; and
·
underinclusive because it denies same-sex
parents and intended parents the legal right
to marry.
[129]
Mr. Justice LaForme further found that the
common law bar to same-sex marriage did
not constitute a minimal impairment of the
equality rights of same-sex couples. Rather,
he found that the law excluded them entirely
from the institution of marriage based upon
a protected personal characteristic.
[130]
Finally, Mr. Justice LaForme rejected the
AGC's submission, which was accepted by
the trial judge in this case, that the salutary
effects of retaining the opposite-sex requirement
of marriage outweighed the deleterious effects
to same-sex couples. He repeated his
earlier statements that the appellants'
quest for the right to marry was not "merely"
a quest for social recognition or social
status, but a quest for equality itself.
He expanded on this view at paras. 261-264
of his reasons:
The restriction against same-sex marriage
is an offence to the dignity of lesbians
and gays because it limits the range of
relationship options available to them.
The result is they are denied the autonomy
to choose whether they wish to marry.
This in turn conveys the ominous message
that they are unworthy of marriage. For
those same-sex couples who do wish to marry,
the impugned restriction represents a rejection
of their personal aspirations and the denial
of their dreams.
There is no meaningful
evidence that points to any legitimate benefit
to the rights denial. In this case,
an absolute common law bar on the freedom
of same-sex couples to marry does not constitute
the "least intrusive" means by
which the state could achieve the purported
goal of providing institutional support
to couples who have and raise children.
On the contrary, this goal could easily
be advanced without denying same-sex couples
the freedom to marry.
Further, I find
that there is no merit to the argument that
the rights and interests of heterosexuals
would be affected by granting same-sex couples
the freedom to marry. Contrary to
the assertion of Interfaith Coalition —
I cannot conclude that freedom of religion
would be threatened or jeopardized by legally
sanctioning same-sex marriage. No
religious body would be compelled to solemnize
a same-sex marriage against its wishes and
all religious people — of any faith
— would continue to enjoy the freedom
to hold and espouse their beliefs.
Thus, there is no need for any infringement
of the equality rights of lesbians and gays
that arises because of the restrictions
against same-sex marriage.
In this case, I
am satisfied that, even if the exclusion
of same-sex couples from marriage recognition
were otherwise appropriate, the harms of
exclusion are so severe that the violation
of their rights and freedoms could not be
justified. Given the serious violation
of fundamental rights and freedoms, and
the evidence of numerous and damaging effects
on an already disadvantaged segment of society,
I can find no benefit whatsoever to the
exclusion.
[131]
Subject to the further comments I will make
with respect to deference to Parliament
and my comments concerning the historical
importance attributed to procreation in
marriage, I am in substantial agreement
with Mr. Justice LaForme's analysis under
s. 1 to which I have just referred.
[132]
In the context of her s. 1 analysis, Madam
Justice Lemelin also dealt with the interest
of various religious groups in the institution
of marriage and their objections to same-sex
marriage based on their religious beliefs.
In that regard, Madam Justice Lemelin made
the following comments, at paras. 164-166
of her reasons, with which I agree:
No one would dispute
that religions have played a major role
in marriage since their beliefs and rites
have governed the development of the institution's
framework. The secularization of marriage
has forced our legislatures to take into
account the fact that the institution is
civil and cannot be defined solely in religious
terms. We are no longer living in
the homogenous community of the last century.
Multiculturalism, various religious beliefs,
the secularization of several institutions
testify to the openness of Canadian society.
The State must ensure compliance by each
individual but no single group can impose
its values or define a civil institution.
The Honourable
Justice Dickson stated the following in
Big M Drug Mart [[1985] 1 S.C.R. 295 at
337] in his analysis of the Lord's Day Act:
What may appear
good and true to a majoritarian religious
group, or to the state acting at its behest,
may not, for religious reasons, be imposed
upon citizens who take a contrary view.
The Charter safeguards religious minorities
from the threat of "tyranny of the
majority".
The Court cannot
conclude that this is the situation in the
instant case although the Churches are firmly
and sometimes tenaciously opposed to granting
homosexual couples access to marriage, as
the expert opinions of the Ligue and the
Alliance explain. Despite this caveat,
the statements of Justice Dickson can be
transposed to any question where the courts
are asked to consider a situation in which
religious values come up against social
concerns, since believers alone may not
define marriage or require the maintenance
of the status quo.
[133]
It is interesting to note that in Quebec,
Article 367 of the Civil Code provides that
no minister of religion may be forced to
celebrate a marriage that his or her religion
and the rules of his or her religious society
do not recognize. A concern was raised
in this appeal by the Interfaith Coalition
that, absent such a provision, religions
whose beliefs preclude the recognition of
same-sex marriage could find themselves
required to participate in such marriages,
or be discriminated against because of their
beliefs. As noted by Lemelin J. in
Hendricks, there is no hierarchical list
of rights in the Charter, and freedom of
religion and conscience must live together
with s. 15 equality rights. One cannot
trump the other. In her view, shared
by the court in Halpern, the equality rights
of same-sex couples do not displace the
rights of religious groups to refuse to
solemnize same-sex marriages which do not
accord with their religious beliefs.
Similarly, the rights of religious groups
to freely practise their religion cannot
oust the rights of same-sex couples seeking
equality, by insisting on maintaining the
barriers in the way of that equality.
While it is always possible for an individual
to attempt to challenge the practices of
a religious group as being contrary to Charter
values, the possibility of such a challenge
cannot justify the maintenance of the common
law barrier to same-sex marriage.
[134]
As was stated by the intervenor, the Liberal
Rabbis, in its factum:
For a number of
years there has been a growing debate in
religious communities about same-sex marriage.
Different religious groups have adopted
various positions on this issue. There
is obviously no uniform religious
perspective on same-sex marriage.
If the Court supports a continuation of
the exclusion of same-sex marriage, it will
be choosing sides in this religious debate.
By allowing same-sex marriage, either through
a civil ceremony generally available to
all or a religious ceremony from a religious
group [which] chooses to offer it, the courts
still respect the freedom of conscience
and religion of those religious groups who
choose not to perform same-sex marriage.
By not allowing same-sex marriage, the court
forces some religious groups to accept the
religious practices of others by forcing
them to exclude same-sex couples from marriage.
[135]
In the result, I agree with the courts in
Halpern and Hendricks that the common law
bar to same-sex marriage cannot be justified
under s. 1 of the Charter.
J. Remedy
[136]
In their factums, the relief sought by the
appellants included:
(a) a declaration pursuant to s. 52
of the Constitution Act, 1867 that the common
law bar against same-sex marriage is of
no force or effect because it violates rights
and freedoms guaranteed by s. 15 of the
Charter and does not constitute a reasonable
and demonstrably justifiable limit on those
rights within the meaning of s. 1 of the
Charter; and
(b) an order in the nature of mandamus
requiring the issuer of marriage licences
in British Columbia to issue marriage licences
to the Appellant couples and to any other
same-sex couples who otherwise meet the
legal requirements for capacity to marry;
and
(c) an order in the nature of prohibition,
preventing the issuer of marriage licences
from refusing to issue licenses to the Appellant
couples or to other same-sex couples, solely
because the applicants for the marriage
licence are of the same sex; and
(d) an order that the Appellants be
granted increased costs in this Court and
in the Court below.
[137]
In their oral submissions, the appellants
also sought an order in accordance with
that made by Mr. Justice LaForme in Halpern,
reformulating the common law definition
of marriage to provide that marriage is
"the lawful union of two persons to
the exclusion of all others".
[138]
The appellants seek immediate relief.
They say that if the court finds a breach
of their constitutional rights which is
not justified under s. 1, the only just
result is to provide the remedies they are
seeking, without restriction or delay.
In the alternative, the appellants submit
that, if the court deems it appropriate
to grant a suspension of any remedy, that
suspension should be short (between three
to six months) and should be granted solely
to permit the federal and provincial governments
time to amend their legislation to give
effect to this Court's ruling. The
appellants submit it would be wholly inappropriate
for this Court to defer the question of
remedy to Parliament, since there is no
legislation in issue and the only remedy
which will achieve equality for the appellants
is the remedy they request.
[139]
In support of their submission, the appellants
referred the court to a federal discussion
paper: "Marriage and Legal Recognition
of Same-sex Unions", (the "Discussion
Paper") dated November 2002, and, in
particular, to p. 24 of that paper which,
in their view, is an acknowledgment by the
drafters that only a change in the law to
permit same-sex marriage "would fully
address equality concerns." The
appellants submit that the other alternatives
to same-sex marriage addressed in the Discussion
Paper would not fully address equality concerns.
Rather, those alternatives are limited
to addressing same-sex relationships short
of marriage. The appellants submit
that any "parallel" remedy short
of marriage would continue to relegate same-sex
couples to a status of second-class citizens
who have not achieved full personhood.
They point to the anomaly arising from the
fact that the children they raise in same-sex
relationships can marry (as long as they
marry opposite-sex partners), while the
appellants cannot.
[140]
The AGC submits that, in the event the court
finds that the common law definition of
marriage is unconstitutional, it should
declare the definition to be of no force
and effect, but suspend the declaration
of invalidity for a lengthy period of time,
"until Parliament and the provincial
legislatures have had an opportunity to
create their own remedial provisions."
The AGC rejects the submission that the
only appropriate remedy is the relief sought
by the appellants. The AGC submits
that this is an instance in which the court
should defer to Parliament on the question
of remedy, particularly since Parliament
has taken some steps through its Discussion
Paper and attendant committee hearings to
determine the best method of dealing with
this thorny issue.
[141]
As earlier stated, in Hendricks Madam Justice
Lemelin declared the provisions of
the various statutes which she found offended
s. 15 of the Charter to be of no force and
effect and stayed the declarations of invalidity
for a period of two years.
[142]
In Halpern, the judges had differing views
of the appropriate remedy. Mr. Justice
LaForme would have reformulated the common
law definition of marriage to permit marriage
between "two persons to the exclusion
of all others". He would have granted
immediate relief in that regard. In
his view, some of the alternatives to marriage
suggested by the AGC were dubious
solutions, based on a theory of equality
which bore more than a passing resemblance
to the long-discarded "separate but
equal" concept of equality.
[143]
Mr. Justice Blair would have given Parliament
24 months to provide a constitutional remedy,
failing which the reformulated common law
definition of marriage proposed by Mr. Justice
LaForme would take effect.
[144]
Associate Chief Justice Smith would have
given Parliament 24 months in which to provide
a constitutional remedy, failing which the
parties could apply to the court for further
directions.
[145]
The trial judge here did not discuss the
issue of remedy because he found that the
breach of s. 15 of the Charter was saved
under s. 1.
[146]
In my view, the question of whether the
court should defer to Parliament in these
circumstances is troubling. In Halpern,
both Associate Chief Justice Smith and Mr.
Justice Blair preferred the deferential
approach, whereby the matter of remedy would
be left to Parliament. In that respect,
Associate Chief Justice Smith adopted the
view of Madam Justice McLachlin set forth
in the following passage from Watkins v.
Olafson, [1989] 2 S.C.R. 750 (at pp. 760-61):
There are sound
reasons supporting this judicial reluctance
to dramatically recast established rules
of law. The court may not be in the
best position to assess the deficiencies
of the existing law, much less problems
which may be associated with the changes
it might make. The court has before
it a single case; major changes in the law
should be predicated on a wider view of
how the rule will operate in the broad generality
of cases. Moreover, the court may
not be a position to appreciate fully the
economic and policy issues underlying the
choice it is asked to make. Major
changes to the law often involve devising
subsidiary rules and procedures relevant
to their implementation, a task which is
better accomplished through consultation
between courts and practitioners than by
judicial decree. Finally, and perhaps
most importantly, there is the long-established
principle that in a constitutional democracy
it is the legislature, as the elected branch
of the government, which should assume the
major responsibility for law reform.
[147]
I note that Olafson was not a Charter case,
but, rather, a case involving the issue
of whether the courts should impose structured
settlements on future payments for successful
plaintiffs in personal injury actions, and,
if so, what form those structured settlements
should take. There were many possible
alternatives in that regard, and the court
did not feel it was in the best position
to choose the ideal alternative from amongst
them. The appellants submit that the
situation in this case is entirely different
since the only solution which would achieve
"true equality" for gays and lesbians
who wish to marry is to permit them to do
so. Other options falling short of
marriage would fail to meet the equality
concerns raised by the appellants and accepted
as legitimate by this Court. In the
appellants' view, seeking to equate "same-sex
relationships" with "same-sex
marriage" is fundamentally flawed.
[148]
Mr. Justice Blair was also of the view that
the court should be reluctant to determine
the appropriate remedy, even though the
proposed remedy suggested by the appellants
"seems simple and straightforward on
its face." In his view, expressed
at para. 97 of his reasons:
. . . the consequences and potential reverberations
flowing from such a transformation in the
concept of marriage, it seems to me, are
extremely complex. They will touch
the core of many people's belief and value
systems, and their resolution is laden with
social, political, cultural, emotional and
legal ramifications. They require
a response to a myriad of consequential
issues relating to such things as inheritance
and property rights, filiation, alternative
biogenetic and artificial birth technologies,
adoption, and other marriage-status driven
matters. The Courts are not the best
equipped to conduct such a balancing exercise,
in my opinion.
[149]
Mr. Justice Blair's reasons for concluding
that it was not appropriate to grant immediate
relief to the appellants, but, rather, to
leave the question of the appropriate relief
to the federal and provincial governments,
at least for 24 months, are well-articulated
at paras. 91-143 of his reasons.
[150]
Mr. Justice LaForme noted that, since many
of the economic disparities between opposite-sex
and same-sex couples had been dealt with
by the federal and provincial governments
following the M. v. H. decision, much of
the need for caution with respect to the
impact of changing the definition of marriage
to accommodate same-sex marriages had dissipated.
He was satisfied that it was for the courts,
not Parliament, to make the change in the
common law, particularly where Parliament
had chosen not to legislate. In the
result, he concluded that the appellants
were entitled to the relief they sought,
and that they should not be forced to wait
for two years to see if Parliament would
grant them a remedy, and, if so, the nature
of that remedy.
[151]
In support of his position, Mr. Justice
LaForme referred (at para. 306 of his reasons)
to the following extract from Mr. Justice
Iacobucci's reasons in Vriend v. Alberta,
[1998] 1 S.C.R. 493 (which represented the
view of the majority on this point):
In my opinion, groups that have historically
been the target of discrimination cannot
be expected to wait patiently for the protection
of their human dignity and equal rights
while governments move toward reform one
step at a time. If the infringement
of the rights and freedoms of these groups
is permitted to persist while governments
fail to pursue equality diligently, then
the guarantees of the Charter will be reduced
to little more than empty words. [para.
122]
[152]
In analyzing the question of whether it
is appropriate for this Court to grant the
appellants redress for the breach of their
equality rights, or defer that decision
to Parliament and/or the provincial Legislatures,
I find it noteworthy that the Law Commission
of Canada (the "Commission") addressed
the issue of same-sex marriage in 2001 in
its report entitled: Beyond Conjugality,
Recognizing and supporting close personal
adult relationships. This report was
broad-ranging and discussed a variety of
adult committed relationships. At
chapter four of the report, the Commission
discussed "The Legal Organization of
Personal Relationships" with a view
to addressing the nature of the state's
role and interest in assigning rights and
responsibilities within committed relationships,
including marriage. Amongst other
things, it addressed the concept of Registered
Domestic Partnerships ("RDP's")
which are raised as an option in the federal
Discussion Paper. The Commission described
RDP's as an alternative way for the state
to recognize and support close personal
relationships and as a regime which is designed
to be a "parallel to marriage".
It is noteworthy that the Commission stated
that the ability of Parliament to implement
such a scheme was limited, since its jurisdiction
under s. 91(26) was not sufficiently broad
to empower it to regulate entry into and
exit from "this new civil arrangement".
The Commission did not view RDP's as a viable
reform option to marriage "at this
time".
[153]
Some of the views on same-sex marriage which
were considered by the Commission are referred
to at pp. 129-130 of its Report:
There are diverse
views on same-sex marriage, with strong
feelings on each side of the issue.
For those same-sex couples who wish to marry,
the prohibition on same-sex marriage represents
a rejection of their personal aspirations
and the non-recognition of their personhood.
They feel that without equal access to the
institution of marriage, their ability to
celebrate their love and their lives on
equal terms is undermined. They feel
that they are denied a fundamental personal
choice.
On the other side
are those who argue, equally passionately,
that marriage has always been defined as,
and should remain limited to, the union
of a man and a woman. For the opponents
of same-sex marriage, it is a matter of
preserving a time-tested and even sacred
institution. Although a number of
religious institutions are now celebrating
same-sex commitment ceremonies, some of
the opposition to expanding the entitlement
to marry to include same-sex couples stems
from religious beliefs. Many feel
that Parliament should not redefine a concept
that they consider inseparable from its
societal and religious meanings and origins.
Others point to the universality of the
heterosexual aspects of marriage and find
it difficult to accept that marriage be
extended to same-sex couples. [Footnotes
omitted.]
[154]
The Commission noted that it received many
submissions both for and against same-sex
marriage and that public polls indicated
that Canadians were increasingly accepting
of the idea of same-sex marriage, although
there was still strong opposition in some
quarters. The Commission also stated
that registration schemes should not be
viewed as a policy alternative to same-sex
marriage since to do so would maintain the
stigma of same-sex couples as second-class
citizens. Ultimately, the Commission
concluded that the argument that marriage
should be reserved to opposite-sex couples
could no longer be sustained where the state's
objectives underlying contemporary state
regulation of marriage "were essentially
contractual ones, relating to the facilitation
of private ordering." As it stated
at p. 130 of its report:
The secular purpose of marriage is to provide
an orderly framework in which people can
express their commitment to each other,
receive public recognition and support,
and voluntarily assume a range of legal
rights and obligations. The current
law does not reflect the social facts: as
the Supreme Court of Canada has recognized,
the capacity to form conjugal relationships
characterized by emotional and economic
interdependence has nothing to do with sexual
orientation. Furthermore, whether
or not denial of same-sex marriage infringes
the Charter, adherence to the fundamental
values of equality, choice and freedom of
conscience and religion, requires that restrictions
on same-sex marriage be removed; the status
quo reinforces the stigmatization felt by
same-sex couples. If governments are to
continue to maintain an institution called
marriage, they cannot do so in a discriminatory
fashion. [Footnote omitted.]
[155]
The Commission went on to emphasize that
the civil recognition of same-sex marriage
did not alter the rights of religious denominations
to solemnize marriage without state interference
in accordance with their religious beliefs.
[156]
Given the extensive consultation engaged
in by the Commission, of which the federal
and provincial governments are aware, it
cannot be said that the subject of same-sex
marriage has not been well-canvassed and
the input of the public invited. Further
consultation will not change the fact that
there are those in favour of same-sex marriage
and those against it. If same-sex
marriage is recognized as being a contravention
of the equality rights of same-sex couples
which cannot be saved under s. 1 of the
Charter, the obvious remedy is that chosen
by Mr. Justice LaForme in Halpern —
the redefinition of marriage to include
same-sex couples. In my view, this
is the only road to true equality for same-sex
couples. Any other form of recognition
of same-sex relationships, including the
parallel institution of RDP's, falls short
of true equality. This Court should
not be asked to grant a remedy which makes
same-sex couples "almost equal",
or to leave it to governments to choose
amongst less-than-equal solutions.
[157]
If Parliament concludes that this result
is unacceptable, it continues to have options
available to it. It could, for example,
abolish marriage altogether. This
solution has not been advocated by any of
the parties or the intervenors and is referred
to by counsel for the appellants as "equality
with a vengeance" in that it punishes
both opposite-sex and same-sex couples equally,
by denying marriage to both. In the
alternative, it is open to the government
to use its override power under s. 33 of
the Charter.
[158]
In the result, I would allow the appeal.
I would grant the declaration sought by
the appellants, namely:
(a) a declaration pursuant to s. 52
of the Constitution Act, 1867 that the common
law bar against same-sex marriage is of
no force or effect because it violates rights
and freedoms guaranteed by s. 15 of the
Charter and does not constitute a reasonable
and demonstrably justified limit on those
rights and freedoms within the meaning of
s. 1 of the Charter.
[159]
I would also reformulate the common law
definition of marriage to mean "the
lawful union of two persons to the exclusion
of all others".
[160]
I would not grant the relief requested in
the nature of mandamus and prohibition on
the basis that it is unnecessary to do so.
[161]
I would suspend the relief referred to in
paras. 158 and 159 until July 12, 2004,
solely to give the federal and provincial
governments time to review and revise legislation
to bring it into accord with this decision.
This period of suspension coincides with
the expiration of the 24-month suspension
of remedy in Halpern, and is necessary,
in my view, to avoid confusion and uncertainty
in the application of the law to same-sex
marriages. The appellants acknowledge
that there will be consequential amendments
required to both federal and provincial
legislation to give effect to this decision.
IX. RESULT
[162]
I would allow the appeal, set aside the
order of the trial judge and make the orders
set forth at paras. 158, 159 and 161, supra.
[163]
If the parties are unable to agree to an
order with respect to costs, they may file
written submissions in that regard.
The intervenors shall bear their own costs.
“The Honourable Madam Justice Prowse”Reasons
for Judgment of the Honourable Mr. Justice
Mackenzie:
[164]
I have had the privilege of reading in draft
the reasons of Madam Justice Prowse.
I agree with my colleague that the appeal
should be allowed and with the remedy to
be ordered. However, I do not find
it necessary to address the wider context
of the issues that has been extensively
canvassed in the companion cases of Halpern
v. Canada (Attorney General), [2002] O.J.
No. 2714 (Div. Ct), and Hendricks v. Canada,
[2002] J.Q. No. 3816 (S.C.), as did Madam
Justice Prowse.
[165]
The judgment under appeal turns on the proposition
that the heterosexual dimension of marriage
is so central to the institution of marriage
as constitutionally expressed in s. 91(26)
of the Constitution Act, 1867 that any purported
extension of civil marriage to include same-sex
couples, either by Parliament or application
of the Charter, would violate an essential
element of the institution with the result
that it would cease to be "marriage".
In my respectful view, that proposition
cannot be supported for the reasons that
follow.
[166]
I agree with the trial judge, Mr. Justice
Pitfield, that the common law definition
of marriage excludes same-sex unions, for
the reasons given by my colleague at paras.
40 to 56 of her reasons. That definition
may be stated as the voluntary union for
life of one man and one woman, to the exclusion
of all others. It is common ground
that the common law definition, in the aspects
with which we are concerned, has not been
modified by statute.
[167]
The question is whether the heterosexual
element of the common law definition is
immutable. Mr. Justice Pitfield concluded
that it was. His opinion is succinctly
stated in the summary of his reasons as
follows (at paras. 10-11):
Parliament may
not enact legislation to change the legal
meaning of marriage to include same-sex
unions. Under s. 91(26) of the Constitution
Act, 1867, Parliament was given exclusive
legislative jurisdiction over marriage,
a specific kind of legal relationship. By
attempting to change the legal nature of
marriage, Parliament would be self-defining
a legislative power conferred upon it by
the Constitution rather than enacting legislation
pursuant to the power. Parliament would
be attempting to amend the Constitution
without recourse to the amendment process
provided by the Constitution Act, 1982.
Alternatively, Parliament would be attempting
to enact legislation in respect of civil
rights exclusively within the legislative
authority of the province.
"Marriage",
as a federal head of power with legal meaning
at confederation, is not amenable to Charter
scrutiny. One part of the Constitution may
not be used to amend another.
[168]
The argument before us in support of this
position was advanced by Mr. Cowper on behalf
of the B.C. Coalition for Marriage and Family
and adopted by Mr. Benson on behalf of the
Interfaith Coalition for Marriage. Mr.
Cowper developed the supporting argument
with reference to the following passage
from the reasons for judgment of Mr. Justice
Blair in Halpern, (at paras. 80-81):
Whether one approaches
"marriage" from the classical
perspective based upon the narrow basis
that heterosexual procreation is its fundamental
underpinning and what makes it "unique
in its essence, that is, its opposite sex
nature", or whether one approaches
it from a different perspective, is pivotal
to the s. 15 analysis, however. If one accepts
the former view as the starting premise,
there is little debate, it seems to me.
The institution of marriage is inherently
and uniquely heterosexual in nature. Therefore,
same-sex couples are not excluded from it
on the basis of a personal characteristic
giving rise to differential treatment founded
upon a stereotypical difference. Same-sex
couples are simply incapable of marriage
because they cannot procreate through heterosexual
intercourse. Thus it is a distinction created
by the nature of the institution itself
which precludes homosexuals from access
to marriage, not a personal characteristic
or stereotypic prejudice. The equality provisions
of s. 15 are not violated, and even if they
were, the same analysis would justify the
law in preserving the institution for heterosexual
couples and therefore save the classic definition
of marriage on a s. 1 analysis.
On the other hand,
once it is accepted that same-sex unions
can feature the same conjugal and other
incidents of marriage, except for heterosexual
intercourse, and if heterosexual procreation
is no longer viewed as the central characteristic
of marriage, giving it its inherently heterosexual
uniqueness, the s. 15 argument must succeed.
If heterosexual procreation is not essential
to the nature of the institution, then the
same-sex couples' sexual orientation is
the only distinction differentiating heterosexual
couples from homosexual couples in terms
of access to the institution of marriage.
For all of the reasons articulated by Justice
LaForme, this differentiation is discriminatory
of the same-sex couples' equality rights
as set out in s. 15 of the Charter and cannot
stand.
[169]
Mr. Cowper submitted that Blair R.S.J. correctly
stated the proposition in the first paragraph
quoted that marriage "is inherently
and uniquely heterosexual" and that
this distinction is not "a personal
characteristic or stereotypic prejudice"
that could engage s. 15 of the Charter.
Mr. Cowper submitted that Blair R.S.J.,
having stated the proposition correctly,
erred in failing to apply it in the second
paragraph just quoted, and that he should
have concluded that the heterosexual dimension
is an essential feature of marriage beyond
the reach of s. 15.
[170]
Pitfield J. extended this analysis to the
conclusion that the heterosexual dimension
of marriage was beyond legislative alteration
by Parliament. While Mr. Cowper supported
that extension, he noted that it was not
necessary to take the proposition that far
to support the judgment, as Parliament has
not tried to legislate an extension to same-sex
couples. However, the trial judge's
conclusion that the matter is beyond alteration
by Parliament would follow logically from
the essentialist character of the position.
[171]
This conclusion was opposed by the submissions
of both Attorneys General as well as the
appellants. The Federal position is
the jurisdiction of Parliament under s.
91(26) does allow an extension of the capacity
to marry to same-sex couples but that jurisdiction
has not been exercised. The Attorney
General of British Columbia takes the same
position.
[172]
Mr. Cowper relied on Reference Re Bill 30,
An Act to Amend the Education Act, [1987]
1 S.C.R. 1148, and Adler v. Ontario, [1996]
3 S.C.R. 609, for the proposition that it
was never intended that the Charter could
be used to invalidate other provisions of
the Constitution, referring to a passage
from the reasons of Wilson J. in Bill 30,
at p. 1197 and quoted at para. 108 of my
colleague's reasons. Both Bill 30
and Adler involved Charter challenges to
the public funding of Catholic separate
schools in Ontario under s. 93 of the Constitution
Act, 1867. Bill 30 was a reference
by Ontario for an opinion on the constitutional
validity of legislation for public funding
of Catholic separate schools in Ontario.
Adler challenged constitutionally the non-funding
of Jewish and independent Christian schools
in Ontario in contrast to the funding of
Catholic schools.
[173]
The constitutionality of Bill 30 was upheld
and the Adler challenge failed. The
majority of the Supreme Court in Adler,
following the reasoning in Bill 30, concluded
that s. 93 was the product of a historic
compromise crucial to Confederation and
formed a comprehensive code with respect
to denominational school rights that cannot
be enlarged through the Charter. The
difference in treatment in Ontario between
Catholic schools and other denominational
schools was integral to the s. 93 Confederation
compromise and was immune to Charter scrutiny.
[174]
In my respectful view, there is no similarity
between the comprehensive code defining
the powers of the provinces with respect
to separate schools in s. 93 and the s.
91(26) power with respect to marriage.
Section 93 embodies a delicate constitutional
balance struck at Confederation which retains
its importance in Canadian polity.
Section 91(26) does not have comparable
significance and it is not a comprehensive
code of marriage.
[175]
Mr. Cowper found support for his position
in observations by La Forest J. in Egan
v. Canada, [1995] 2 S.C.R. 513, para. 21,
that marriage "is by nature heterosexual",
in the sense that heterosexual couples have
a unique ability to procreate. The
passage in Egan relied on by Mr. Cowper
is quoted at para. 93 of my colleague's
reasons. I agree with her conclusion
that La Forest J. was speaking for a minority
of the court on this point and the observations
were not directed to the issue of Parliament's
authority to alter the definition of marriage.
I think that any such implication
would be contrary to the clear trend of
the Supreme Court's jurisprudence on homosexual
rights: see for example Vriend v. Alberta,
[1998] 1 S.C.R. 493.
[176]
Mr. Cowper also suggested an analogy between
marriage in s. 91(26) and the jurisdiction
conferred on Parliament under s. 91(24)
with respect to "Indians, and land
reserved for the Indians" and exercised
through the Indian Act, R.S.C. 1985, c.
I-5. Unquestionably, he submitted,
Parliament could not assert a jurisdiction
over non-aboriginal persons under the Indian
Act by the expedient of revising the definition
of "Indian" in the Act to include
non-aboriginal persons. The jurisdiction
with respect to Indians is in its essential
character limited to aboriginal persons.
Similarly, it is argued that the heterosexual
dimension of marriage is so fundamental
to the institution of marriage that an extension
of the capacity to marry to same-sex couples
would result in the institution ceasing
to be marriage as constitutionally envisioned,
against the historical background of its
recognition only for heterosexual couples
from time immemorial in common law, civil
law and canon law.
[177]
In my view, Mr. Cowper's hypothetical Indian
Act analogy is not persuasive. In
contemporary Canadian society, I do not
think that heterosexuality has the same
essential quality for marriage as an aboriginal
heritage has to jurisdiction related to
Indians. The Indian analogy also breaks
down at another point. Jurisdiction
over non-aboriginal property and civil rights,
vested in Parliament with respect to aboriginals,
rests with the provinces under s. 92 and
can be exercised by provincial legislatures.
However, the essentialist position with
respect to the heterosexual requirement
for capacity to marry is that while it remains
federal jurisdiction, it is beyond alteration
by either Parliament or the provincial legislatures.
In other words, while the constitutional
definition of "Indians and Property
reserved for Indians" is a division
of powers question with the power to legislate
residing either in Parliament or the legislatures,
the essentialist position is that extending
capacity to marry to same-sex couples would
be beyond both federal or provincial legislative
powers and constitutionally frozen as such,
short of constitutional amendment.
I agree with the submission of the Attorney
General of Canada that there is a fundamental
constitutional premise that legislative
power is plenary and that every matter,
existing now or in the future can be found
within the legislative competence of one
or the other level of government.
There are a few exceptions, as Professor
Hogg notes (P. Hogg, Constitutional Law
of Canada, loose-leaf ed. (1997), pp. 15-42/43),
but marriage would not come within them
apart from Charter scrutiny. In my
view, the conclusion that this aspect of
the capacity to marry exists in a legislative
vacuum is not tenable.
[178]
In my respectful view, the trial judge's
reasons fail to give adequate weight to
the evolution of societal views with respect
to homosexuality. Until relatively
recently, homosexual relations were subject
to criminal sanctions and the idea of same-sex
marriage was not a possibility that could
be seriously considered. Since the
de-criminalization of homosexual relationships
in Canada in 1969, there has been a steady
expansion of the rights of gay, lesbian
and bi-sexual persons reflected in human
rights legislation and Charter jurisprudence.
These developments have substantial public
support, although the matter remains controversial.
In my view, this evolution cannot be ignored.
Civil marriage should adapt to contemporary
notions of marriage as an institution in
a society which recognizes the rights of
homosexual persons to non-discriminatory
treatment. In that context, I do not
think it can be said that extending the
capacity to marry to same-sex couples is
so fundamental a change as to exceed Parliament's
jurisdiction over marriage under s. 91(26).
[179]
In short, I do not think that the judgment
under appeal can be supported on the ground
that marriage under s. 91(26) is so essentially
heterosexual as to be constitutionally incapable
of extension to same-sex couples and in
that respect immune from Charter scrutiny.
[180]
I agree with the conclusion of my colleague
that the common law definition of marriage
contravenes s. 15 of the Charter and that
it cannot be justified in contemporary Canadian
society under s. 1. The Charter issues
have been extensively canvassed by my colleague
and the several opinions in Halpern and
Hendricks and I do not think that there
is anything I can usefully add to the Charter
analysis in those opinions.
[181]
I wish to emphasize, as did my colleague,
at paras. 133 and 134 of her reasons, that
the issue before us concerns civil marriage
only and the conclusion does not displace
the rights of religious groups to refuse
to solemnize same-sex marriages that do
not accord with their religious beliefs.
Freedom of religion under the Charter requires
respect for the pluralism of religious beliefs
on this question.
[182]
For these reasons I would allow the appeal
and grant the remedy directed by Madam Justice
Prowse.
“The Honourable Mr. Justice Mackenzie”
I AGREE:
“The Honourable Mr. Justice Low”
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