|
K.A. Lahey
|
Counsel for the Appellants in CA029017, Barbeau et al.
|
|
J.J. Arvay Q.C. and C. Petersen
|
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
|
|
Written Submissions Received:
|
June 25 and 30, July 3 and 4, 2003
|
|
Place and Date of Judgment:
|
Vancouver,
British Columbia
|
|
July
8, 2003
|
Reasons
for Judgment of the Court:
[1] On
May 1, 2003, this Court released reasons for judgment with respect to
these appeals. (Those reasons may be found at 2003 BCCA 251, [2003] B.C.J. No.
994.) The Court declared that the common law definition of marriage as "the
voluntary union for life of one man and one woman to the exclusion of all
others" constituted a common law bar to same-sex marriage and was
of no force or effect on the basis that it violated s. 15 of the Canadian
Charter of Rights and Freedoms and could not be saved under s.
1. The Court reformulated the common law definition of marriage as: "the
lawful union of two persons to the exclusion of all others". It
then suspended these remedies until July 12, 2004.
[2] The
reasons for suspending the remedies were set out at para. 161 of the reasons
for judgment of Madam Justice Prowse, speaking for the Court on this point:
I
would suspend the relief referred to in paras. 158 [the declaration of
invalidity of the common law definition of marriage] and 159 [the reformulation
of the new common law rule] 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 [v.
Canada (Attorney General), [2002] O.J. No. 2714, (2002) 215 D.L.R.
(4th) 223], 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.
[3] On
June 10, 2003, the Ontario Court of Appeal issued its judgment in Halpern
v. Canada (A.G.), [2003] O.J. No. 2268, dealing with essentially
the same issues as were dealt with in these appeals and reaching the
same conclusions. The Ontario Court of Appeal, however, granted immediate
relief, including a reformulation of the common law definition of marriage
to permit
same-sex marriages, and an order that the Clerk of the City of Toronto
issue marriage licences to the same-sex couples who had been denied licences.
[4] It
is common ground that the federal government has instructed its counsel
not to appeal either the Ontario Court of Appeal decision in Halpern or
the decision of this Court, and that marriages between same-sex couples
have been taking place in Ontario since the Halpern decision
was released.
[5] The
appellants are now applying to re-open these appeals for the sole purpose
of requesting this Court to lift the suspension of remedies to give same-sex
couples in British Columbia the same right to marry as their counterparts
in Ontario. The order which is sought to be varied in that regard has
not yet been entered.
[6] It
is important to note that these applications are consented to by counsel
for the Attorney General of Canada and are unopposed by counsel for the
Attorney General of British Columbia. It is reasonable to assume, therefore,
that any consequential amendments to the law which may be required as
a result of this Court's decision do not require the suspension of remedy
which this Court originally imposed.
[7] It
is also apparent that any further delay in implementing the remedies will
result in an unequal application of the law as between Ontario and British
Columbia, with same-sex couples being denied the right to marry in British
Columbia until July 12, 2004 while same-sex couples in Ontario may marry
as and when they choose to do so.
[8] In
these circumstances, the Court is satisfied that it is appropriate to amend
the order in these appeals to lift the suspension of remedies, with the
result that the declaratory relief and the reformulation of the common
law definition of marriage as "the lawful union of two persons to the exclusion
of all others" will take immediate effect.
“The Honourable Madam Justice Prowse”
“The Honourable Mr. Justice Mackenzie”
“The Honourable Mr. Justice
Low”
Bookstore