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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
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