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The Court of Appeal For British Columbia
May 1, 2003
Court 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 Low
INDEX
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
162
Reasons 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. 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. 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 marriage that 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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