Court File No. 684/00
ONTARIO
SUPERIOR COURT OF JUSTICE
(DIVISIONAL COURT)
BETWEEN:
HALPERN et al
Applicants
and
CANADA (A.G.) et al
Respondents
Court File No. 39/01
AND BETWEEN:
MCCT
Applicant
and
CANADA (A.G.) et al
Respondents
FACTUM OF THE APPLICANT
METROPOLITAN COMMUNITY CHURCH OF TORONTO
PART I - STATEMENT OF MCCT’S POSITION IN THIS APPLICATION
1. Kevin Bourassa loves Joe Varnell. Elaine Vautour loves Anne Vautour. Kevin and
Joe were married to each other, and Elaine and Anne were married to each other, in a
double wedding at their Church, the Metropolitan Community Church of Toronto
(“MCCT”), on January 14, 2001. Their wedding, conducted in accordance with the
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rites of their Christian faith, was a joyous and spiritual occasion. Their marriages
were recognized as real marriages by themselves, their families, their friends and their
Church. Their marriages were not recognized by their governments for the sole
reason that they chose to marry someone of their own sex.
2. Canadians have the right and freedom to marry. There is no common law prohibition
on same sex marriage, and there is no statute of Canada that imposes any such
prohibition. In the alternative, any restriction that does exist is a common law
restriction that reflects traditional Christian theology. Any such common law
restriction should therefore be modified in order to conform to contemporary secular
Canadian society. In the further alternative, any restriction that does exist violates the
Canadian Charter of Rights and Freedoms (“Charter”) and the rights and freedoms
of MCCT and its congregants, including their rights to freedom of association and
freedom of religion under sections 2(a) and 2(d), their right to liberty under section 7
and their right to be free from discrimination based on religion, sexual orientation and
sex under the equality provisions in section 15(1) and section 28. Because the Charter
violation involves discriminatory purposes or a discriminatory effect, namely the
imposition of one sectarian religious view of marriage by the state on those who do
not share that belief, and discrimination based on sex and sexual orientation, the
violation cannot be saved under section 1 of the Charter. The Registrar General of
Ontario has no legal authority to refuse registration of the documents (“Documents”)
tendered to him by MCCT in respect of the marriages in question in this application.
The appropriate remedy in the circumstances is a declaration that the marriages are
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valid and a mandatory order directing registration of the Documents. In its capacity as
intervener in Halpern v. Canada, MCCT supports the granting of the relief sought by
the Applicants in that Application.
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982,
being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”);
Halpern v. Canada, Court File No. 684/00 (“Halpern”); Affidavit of Reverend
Doctor Brent Hawkes, sworn August 30, 2001, Reply Record of the Applicant
MCCT at 29, para. 38 (“Hawkes 2”).
PART II - FACTS
3. The Applicant MCCT is a Christian Church. Under the leadership of Senior Pastor
the Reverend Doctor Brent Hawkes, MCCT with its 450 members has grown to be
the third largest congregation in the worldwide denomination to which it belongs, the
Universal Fellowship of Metropolitan Community Churches (“UFMCC”).
Affidavit of Reverend Brent Hawkes, sworn January 28, 2001, Application Record
of the Applicant, MCCT, Vol. 1, Tab 3 at 31, paras. 4-5 (“Hawkes 1”).
4. UFMCC was established in 1968 with a central mission and teaching that Christianity
and homosexuality are compatible. The foundation of the denomination’s distinct
Christian theology is the belief that the traditional Christian view that homosexual
acts are sinful is in error. It teaches that this view was based on misinterpretations of
Scripture, as well as ancient, unscientific and outdated beliefs about the nature of
human sexuality, beliefs that influenced early Christian attitudes toward sexuality in
general, and homosexuality in particular. MCCT believes in the continuing process of
revelation with respect to sexuality. Just as Christianity came to renounce its
traditional support for slavery, its historic anti-Semitism and its religious
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condemnation of interracial marriage, MCCT teaches that Christianity can and should
renounce its traditional condemnation of homosexual acts.
Hawkes 1, at 31, 34-44, paras. 4, 14-45; Hawkes 2, at 21, para. 11.
5. The majority of the congregants at MCCT are lesbian or gay, many having left
Christian denominations that taught them that their homosexuality was sinful.
Hawkes 1, at 31, 32, paras. 5, 8; Affidavit of Kevin Bourassa and Joe Varnell,
sworn January 24, 2001, Application Record of the Applicant, MCCT, Vol. 1,
Tab 4, at 81 para. 14 (“Bourassa”).
6. Marriage is an important concept to Christians. Christians believe that Jesus Christ
performed his first miracle during a wedding at Cana. MCCT has offered marriage to
its heterosexual congregants for some time. MCCT offered “holy union” ceremonies
in lieu of marriages to same sex couples, some of whom have been in relationships
for 35 or 40 years. Reverend Dr. Hawkes estimates that he has performed over 250
“holy unions”. However, many such couples demanded the right to a “marriage”.
MCCT felt constrained from performing marriages for same sex couples because it
understood that the municipal authorities in Toronto would not issue a marriage
license to same sex couples, a license which was thought to be a necessary legal
requirement for a valid marriage.
The Bible: New Revised Standard Version (“The Bible”), at John 2: 1-11; Hawkes
1,at 32-33, 45-46, paras. 9, 50, 53; Affidavit of Dr. Daniel Cere, sworn April 12,
2001, Record of the Intervener, The Interfaith Coalition on Marriage and Family,
Tab 1, at 4, 26, paras. 5, 65 (“Cere”).
7. MCCT eventually learned that the ancient Christian tradition of publishing the banns
of marriage was a lawful alternative to a marriage license issued by municipal
5
authorities under the laws of Ontario. It decided to embrace this Christian practice,
which allowed it to marry in accordance with its own religious beliefs without
needing the cooperation of the municipal authorities.
Hawkes 1, at 47, para. 54; Marriage Act, R.S.O. 1990, c. M.3, s. 5.
8. Reverend Dr. Hawkes published the banns of marriage for two couples, Kevin
Bourassa (“Kevin”) and Joe Varnell (“Joe”), and Elaine (“Elaine”) and Anne Vautour
(“Anne”), on three separate Sundays during divine service at MCCT, namely
December 10 (International Human Rights Day), December 17, and December 24,
2000. Elaine is herself a Deacon at MCCT. No lawful objections were received to the
proposed marriages.
Hawkes 1, at 47, para. 56; Affidavit of Elaine Vautour and Anne Vautour, sworn
January 24, 2001, Application Record of the Applicant, MCCT, Vol. 1, Tab 5, at
83, para. 1 (“Vautour”).
9. On January 14, 2001 Reverend Dr. Hawkes presided at the wedding of Elaine to
Anne and of Kevin to Joe at MCCT. He registered the marriages in the Church
Register, and issued marriage certificates to the couples.
Hawkes 1, at 48, para. 57.
10. In compliance with the laws of Ontario, MCCT submitted the required documentation
for these marriages to the Office of the Registrar General pursuant to the Vital
Statistics Act and the Regulations under the Marriage Act. The Registrar refused to
accept the documents for registration, citing an alleged federal prohibition on same
sex marriages. As a result, MCCT launched the present Application. This Application
was joined with an existing Application in Halpern, an Application in which a
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number of same sex couples seek marriage licenses and in which MCCT had
previously been granted intervener status by Madam Justice Lang.
Hawkes 2, at 29, paras. 37, 38; Halpern v. Canada, Court File No. 684/00; Vital
Statistics Act, R.S.O. 1990, c. V.4, s. 19(1); Marriage Regulations, R.R.O. 1990,
Reg. 738, s. 2.
PART III - ARGUMENT
I
HISTORICAL AND SOCIAL CONTEXT
11. In considering Charter rights, the Court must examine the historical and social
context of the law in question. The analysis of the common law also benefits from
this process. In R. v. Big M Drug Mart Ltd., Dickson J. noted that “…the Charter was
not enacted in a vacuum, and must therefore, as this Court’s decision in Law Society
of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, illustrates, be placed in its
proper linguistic, philosophic and historical contexts”.
R. v. Big M Drug Mart Ltd., [1985] S.C.R. 295 at 344 (“Big M”).
A. SOCIAL CONTEXT
(i)
Canada’s Culture of Human Rights
12. As Justice Krever noted in Haig, the Charter context includes the “enlightened
evolution of human rights” since the Second World War, a human rights movement in
which our country has played a leading role. The progress of gays and lesbians
toward equality has been a remarkable feature of this movement, shifting from the
legal status of criminals or mental degenerates in the 1960’s to that of a
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constitutionally protected minority with a right to equality before the law and
enjoying wide support in society today.
Haig v. Canada (1992), 9 O.R. (3d) 495 (C.A.) at 503 (“Haig”); Affidavit of
William N. Eskridge Jr., sworn November 14, 2000, Application Record of the
Applicant Couples, Vol. 3, Tab 1, at 31-34, paras. 61-67 (“Eskridge 1”); Hawkes
1, at 48, para. 59; Hawkes 2, at 21, para. 8; Affidavit of John Fisher, sworn
January 10, 2001, Application Record of the Intervener EGALE, Tab 1, at 28,
paras. 79-80 (“Fisher”).
13. The social context includes the increasing tolerance and even acceptance of gays and
lesbians in society, here and in other democracies. For example, even Churches that
still teach that homosexual acts are sinful, such as the Catholic Church, teach that
homosexuals are entitled to love and respect. Even South Africa, once a pariah in the
world because of its human rights violations, now affords constitutional equality
protection to gays and lesbians.
Transcript of the Cross-Examination of Suzanne Scorsone dated August 21, 2001,
Reply Record of the Applicant, MCCT, Tab 6, at 180, Q. 65 (“Scorsone
Transcript”); Eskridge 1, at 31-34, paras. 61-67.
(ii)
The Importance of Marriage to Members of MCCT
14. The social context includes the importance of marriage to members of MCCT. Elaine
and Anne said:
We love one another and are happy to be married. We highly value the
love and commitment to our relationship that marriage implies. Our
parents were married for over 40 and 50 years respectively, and we value
the tradition of marriage as seriously as did our parents.
Vautour, at 85, para.18.
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15. For Christians, marriage is founded on love, and on freedom of choice. As with many
other Canadians, for members of MCCT the capacity to marry and the right to marry
the person of one’s choice is an incident of full membership in society, of “ full
personhood”. The couples married at MCCT had this to say:
We wish to have our marriage registered with the Registrar General for
Ontario for many reasons. We believe that we have the freedom to choose
whom to marry. We want to be recognized as a legally married couple.
Vautour, at 84, para. 13.
We believe that we should have the right, as should any other Canadian
citizen, to choose, from those options available, how to formalize our
relationship. By excluding us from marriage, the government is sending a
message that same sex couples are second-class citizens as compared to
opposite sex couples in Canada. We feel the impact of the government’s
violation of our human rights every day in our lives...
We deeply hope that our nation, with its rights and protections, will prove
to be a country that stands for all Canadians, and will provide full and
equal rights to marriage regardless of sex or sexual orientation.
Bourassa, at 79, 81, paras. 8, 14; Vriend v. Alberta, [1998] 1 S.C.R. 493 at
580 (“Vriend”); and see generally Lahey, Are We Persons Yet?, Toronto:
University of Toronto Press, 1999.
16. Marriage for Christians is a manifestation of religious belief, a commitment before
and to God. It is a spiritual celebration. Gays and lesbians have been marginalized in
our society, including by religious bodies. It is important to note the key role of
MCCT in the lesbian and gay community as a spiritual haven, a refuge for those who
have been made to feel unwelcome in other faiths because of their sexual orientation.
Kevin and Joe said:
For years, both of us were spiritually orphaned. We were both raised as
Catholics and we both of us left the church as adolescents when we
realized that, because of our sexual orientation, we were not welcome.
Finding the Metropolitan Community Church of Toronto was an
incredible experience, liberating us from the spiritual abuse and
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intolerance of the past … At the front of the church’s sanctuary are the
words, “My house shall be a house of prayer for all people”.
Bourassa, at 81, para. 14; Hawkes 1, at 34, para. 13; Affidavit of Robert J.
Hughes, sworn December 18, 2000, Application Record of the Applicant, MCCT,
Tab 8, at 122, para. 3 (“Hughes”).
17. Marriage is a public affirmation of love before friends and family, and often, within a
religious congregation. It is a status with well-recognized social significance that,
rightly or wrongly, is perceived by many to be the commitment of the highest order of
one person to another. Kevin and Joe said:
Many people use terms to describe our relationship that indicate that they
consider our relationship to be inferior to that of heterosexual couples.
Many people think they are being kind when they refer to, “your friend
Kevin” or “your friend Joe”. No one would dream of referring to the wife
or husband in a heterosexual relationship as “your friend”, but it is
considered polite to do so in our case.
Bourassa, at 81, para. 12.
The Supreme Court of Canada has observed that:
Historically in our society, the unmarried partner has been regarded as less
worthy than the married partner.
Miron v. Trudel, [1995] 2 S.C.R. 418 at 498 (“Miron”).
18. Marriage is also a relationship with legal status. Despite many improvements in the
law in recent years, married persons continue to enjoy a regime of more complete
rights and obligations. For example, as Elaine and Anne noted:
We have drafted Wills in order to protect ourselves should one of us
predecease the other. If our marriage were legally recognized, this would
not be necessary in the event of a death.
10
Vautour, at 85, para. 16; see An Act to Amend Certain Statutes Because of the
Supreme Court Decision in M. v. H, S.O. 1999, c. 6 (“Bill 5”); Succession Law
Reform Act, R.S.O. 1990, c. S.26, s. 20 (Part II).
19. Perhaps the best evidence of the importance of “marriage” to members of MCCT is
that, despite the long-standing practice of blessing “holy unions”, same sex couples at
MCCT have pressed for “marriages”. In fact, “marriage” was of sufficient
significance to Elaine and Anne and Kevin and Joe that they were married even
though they had previously been through “holy unions”. Kevin and Joe noted that the
reaction of family and friends was very different to the “wedding”, as compared to
the “holy union”:
The reaction of our friends and family was vastly different at our wedding
than it was at our holy union. The wedding was perceived to be the “real
thing” in the minds of our witnesses and participants, and not a substitute
or play-acting exercise. This perception of equality is extremely important
as it shapes the attitudes of even those who are close to us, not just
strangers who we encounter.
Our parents did not create a wedding cake for us at our holy union, as they
did for our wedding. Our parents did not bestow upon us treasured
heirlooms at our holy union, as they did at our wedding. We were not
considered “in-laws” of each other’s family, as we are now. The marriage
ceremony has changed people’s attitudes, deepened family ties, and
fostered acceptance of our relationship in the minds of those who love us.
We can only imagine the impact of legal recognition on those who don’t
know us, and on those who see our lives and existence as less than that of
our heterosexual fellow citizens.
Bourassa, at 80, paras. 9, 10.
B. HISTORICAL CONTEXT
(i)
Legal Enforcement of Traditional Christian Teachings on Homosexuality and
Marriage
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20. A consideration of the historical record reveals that the alleged legal impediment to
same sex marriages exists because of the historic influence of Christian theology on
the law’s treatment of marriage and homosexuality. Legal restrictions on the rights of
gays and lesbians are rooted in traditional Christian teachings. Similarly, the
common law’s view of what constitutes a valid marriage has been based on the
constitutionally unsound foundation of traditional Christian teachings about marriage.
21. These historical legal and social impediments explain the apparent “traditional” lack
of recognition of same sex marriage in Canada to date. However, since the 1950’s,
there has been an increasing secularization of Canada’s laws and conservative
Christian dogma on marriage and homosexuality should no longer inform our law.
(a) Homosexuality, Religion and the Law
22. In order to understand the influence that Christian teaching has had on the laws
affecting gays and lesbians, it is necessary to briefly consider the foundations of those
teachings.
23. The ancient Hebrews had many laws that governed their behaviour, including their
sexual behaviour. Christians refer to the Hebrew Scriptures as the “Old Testament”.
The Old Testament contains two principal passages that some scholars and
theologians have relied on as evidence of a prohibition on homosexual acts and which
have had profound influences on the law. The first is the story of Sodom and
Gomorrah, and the second is a passage in Leviticus.
12
The Bible, Genesis: 19:1-29, Leviticus 20:13.
24. In the tale of Sodom and Gomorrah, two angels visit Sodom and lodge with Lot, who
is himself a sojourner in the city. A crowd demands that Lot’s guests be produced “so
that we may know them”. Lot offers his daughters instead. When the crowd refuses
this offer, the angels intervene and the crowd is struck blind. Later, God destroys
Sodom and the other Cities of the Plain. Many modern Biblical scholars now debate
the correct interpretation of the story of Sodom and Gomorrah. MCCT adopts the
interpretation favoured by many scholars that the sin of Sodom was the threat of rape
to guests, in gross violation of the duty of hospitality, and has nothing to do with
consensual acts or loving relationships among gays and lesbians.
Hawkes 1, at 40, para. 31; Bailey, Homosexuality and the Western Christian
Tradition (London: Longmans, Green and Co. Ltd., 1955, reprinted in Hamden:
Archon Books, 1975) at 1-28 (“Bailey”).
25. Leviticus 20:13 provides:
“If a man lies with a male as with a woman, both of them have committed
an abomination; they shall be put to death; their blood is upon them.”
This passage is found in what is also known as the “Holiness Code” that prescribes such
conduct as eating kosher food. It is not binding on Christians. It prescribes many harsh
penalties for violations, although there is no evidence that the ancient Jews in fact
imposed capital punishment on those who, for example, breached this particular
prohibition on “homosexual acts”. Many traditional Jewish scholars currently favour the
interpretation that the only act expressly prohibited by Leviticus was anal intercourse
between men. It was only subsequent interpretations of this passage that extended the
13
prohibition to other sexual acts between men, and to sexual acts between women. The
Old Testament says nothing about lesbian acts directly.
The Bible, at Leviticus 20:13; J. Boswell, Christianity, Social Tolerance and
Homosexuality, (Chicago: The University of Chicago Press, 1981) at 93, 100-106
(“Boswell 1”); Affidavit of Rabbi David Novak, sworn April 17, 2001, Record of
the Intervener, The Interfaith Coalition on Marriage and Family, Tab 3, at 86-87,
89, paras. 4, 12 (“Novak”); Bailey, supra at 29-37, 57-63; Hawkes 1, at 40, para.
32.
26. Jesus Christ was born in the Roman Empire. The Romans, like the Greeks they
admired, do not appear to have had any general religious or legal prohibitions against
homosexual acts as such at the time. The pagan Roman emperors, such as Hadrian,
sometimes had well known public relationships with other men and the Emperors
Nero and Elagabalus actually married other men. Despite this, Jesus Christ himself is
not recorded as saying anything on the topic of homosexual acts.
Exhibit “B” to the Affidavit of Jacqueline Murray, sworn January 24, 2001,
Application Record of the Applicant, MCCT, Vol. 1, Tab 6 (“Murray”), at 100;
Hawkes 1, at 41, para. 33; Boswell 1, at 84; Bailey, at 29, 37-41, 60-61; Eskridge
1 at 4, 8, paras. 9, 17.
27. Christians refer to the Scriptures relating to the life and teaching of Christ and his
followers as the “New Testament”. There are passages in the New Testament that
have been interpreted by some to condemn homosexuality. There is scholarly debate
about what was meant by the authors, particularly Saint Paul’s use of the coined
phrase “arsenokoitai” (“sodomites” at 1 Cor. 6:9 and at 1 Tim. 1:10). Rather than
referring strictly to male homosexuality, some scholars suggest that the passages
might refer to pagan religious prostitution. It has also been argued that Paul’s
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manifest concern is not with homosexuality in general, but with lust and idolatry, and
that he certainly did not contemplate “homosexuals” as we understand the term.
Boswell 1, at 342-50 and 115-17; D.F. Greenberg, The Construction of
Homosexuality, (Chicago: The University of Chicago Press, 1990) at 211-216
(“Greenberg”); Murray, at 100-101; Bailey, at 38-39; Hawkes 1, at 42-43, paras.
37-40; The Bible, at 1 Cor. 6:9, 1 Tim. 10.
28. Eventually, under Constantine, the Romans adopted Christianity as their state
religion. The first law proscribing homosexual acts enacted and apparently enforced
by the Romans was the law of the Emperor Justinian in 538. By this time, the
prevailing interpretation of the Sodom story was that God destroyed Sodom because
of its tolerance of homosexual acts. Justinian’s Code explicitly referenced the Sodom
story, explaining that homosexual acts could not be tolerated by the state lest God
destroy, not just the sinners themselves, but also those who ignored the sin.
Hawkes 1, at 38-39, para. 26; Boswell 1, at 171; Bailey, at 73-79; Eskridge 1, at
11, para. 21.
29. Some scholars, such as the late Professor John Boswell, have argued that Roman
social tolerance of homosexual acts prevailed into the Middle Ages notwithstanding
Justinian’s Code and the state religion. Boswell has argued that this extended to the
blessing of same sex marriages by the Christian Church.
Boswell 1, at 169-174; Eskridge 1, at 11-14, paras. 22-25; See generally J.
Boswell, Same-Sex Unions in Premodern Europe, (Toronto: Random House,
1994) (“Boswell 2”).
30. Christianity in the 13th century was preoccupied with issues of sexual purity,
primarily for the clergy but also for the laity. Strongly influenced by Saint Augustine,
the Roman Catholic Church endorsed the principle that the priestly elite should be
15
celibate, and that the laity were permitted to engage in sex only within marriage, and
then only for the purposes of procreation.
Greenberg, at 221, 225.
31. Most scholars agree that by the late Middle Ages Christian hostility to male
homosexual acts increased, under the influence of writers such as St. John
Chrysostom, St. Jerome, Thomas Aquinas, and Albertus Magnus. What had been
viewed as a relatively minor sin that could be forgiven by reasonable penance came to
be seen as a particularly wicked act deserving of extreme punishment such as
castration and stoning. The first penal statue was enacted in France in the mid 13th
century in keeping with these views, and imposed the penalty of castration and death
by stoning. Many states followed the French example, often specifying a penalty of
death by the “flames of purification”. Like the Bible itself, the law remained largely
silent regarding lesbian sexual acts, which were never criminal in England or Canada.
Greenberg, at 272; Bailey, at 25, 141-43.
32. In England, where homosexual offences were under the jurisdiction of the
ecclesiastical courts, the prosecution of and punishment meted out for male
homosexual acts had been generally less severe than among their Continental
counterparts until the 16th century. In 1533, as part of his drive to wrest power from
the Church, Henry VIII passed the first civil penal statute dealing with “the
abominable vice of buggery”. The description of the crime as “abominable” echoed
the language of Leviticus. The death penalty was specified for the guilty. This statute
was variously repealed and re-enacted in the period of religious upheaval that
16
followed before being definitively re-enacted by Elizabeth I. Her Act noted that
buggery was an offence “to Almighty God”.
Bailey, at 145-152, especially 147-150.
33. In Canada, prior to the arrival of the French and English, the First Nations had no
similar religious or other proscriptions of homosexual acts. Most First Nations
recognized that some of their members were what we would call “gay” or “lesbian”.
First Nations believed that such persons were “two-spirited”, that is that they had both
a male and a female spirit, and that they were special or magical persons as a result.
Many native cultures conceived of such persons as being of a third gender, and had a
special name for them, such as the Lakota word winkte (Europeans used the term
berdache, derived from the French word for male prostitute). Two-spirited persons
often occupied a special place in their nations, and had relationships with others of
the same sex. Their nations did not believe that these winkte were immoral, but rather
that “God made them that way”.
Eskridge 1, at 14-16, 23, paras. 26-32, 45; W. L. Williams, The Spirit and the
Flesh: Sexual Diversity in American Indian Culture, (Boston: Beacon Press,
1992) (“Williams”); Le Duigou, “A Historical Overview of Two Spirited People: a
Context for Social Work and HIV/AIDS Services in the Aboriginal Community”
Native Social Work Journal Vol. 3(1), September 2000, at 195-197 (“Le
Duigou”); G. Kinsman, The Regulation of Desire, 2nd ed., (Montreal: Black Rose
Books Ltd., 1996) at 92-93 (“Kinsman”).
34. With the arrival of the Europeans to North America, traditional Christian values were
brought to this continent by missionaries who imposed their values on the First
Nations in the name of “salvation” and “civilization”, values that many would
characterize today as religiously intolerant, racist, sexist and heterosexist. Europeans
17
were horrified by the widespread practice of homosexuality among First Nations, and
the social acceptance of the winkte. They saw these practices as evidence of a
“heathen and savage sexuality”. They viewed the cross-dressing male winkte as
“debasing” themselves by adopting the dress and role of women, since Europeans
viewed women as men’s social inferiors. When First Nations succumbed to European
diseases such as smallpox, the Europeans interpreted these outbreaks as divine
punishment for “sodomy”. The reaction of Europeans was sometimes overtly violent.
For example, the explorer Balboa had a group of aboriginal “sodomites” devoured by
his dogs. This massacre was reported to the King of Spain as “a fine action of an
honourable and Catholic Spaniard”.
Eskridge 1, at 14-16, 23, paras. 26-32, 45; Williams, at 137, 138 and plate 5; Le
Duigou; Kinsman, at 92.
35. The French brought the French penal law to Canada, including a law that criminalized
sodomy. It is not known whether anyone was actually executed under the French
regime for this crime, but history records at least one person who was sentenced to
death and another who was banished on pain of death because of “sodomy”. The
French law against sodomy was repealed as part of the secular reforms of the French
Revolution, but by that time Canada was under English rule.
Kinsman, at 98-99.
36. It was in the 19th century that the medical model of homosexuality emerged as an
alternative to the Christian model of “sodomites” engaging in “sin”. The term
“homosexual” was coined for the first time in 1870, and the concept of an innate
sexual orientation emerged to compete with the Christian notion of “sodomy” as an
18
immoral expression of free will. Freud argued that laws penalizing “sodomy” were
cruel and morally wrong – an “extreme violation of human rights” – because they
punished persons for sexuality that was natural to them and not “sinful”.
Greenberg, at 426; Eskridge 1, at 2-3, para. 6.
37. During the 1950’s, Sir John Wolfenden was asked to study law reform around
sexuality. His landmark report decried British laws prohibiting male homosexuality
as “the Blackmailer’s Charter”. He urged decriminalization of male homosexual acts
between consenting adults in private. However, it would take over ten years before
Parliament would act on this recommendation in England.
Wolfenden, “Report of the Committee on Homosexual Offences and Prostitution”
(London: Her Majesty’s Stationary Office, 1957) (“Wolfenden”); Greenberg, at
456.
38. At the same time, the Church of England commissioned a group to study Church
teachings. The first theological book to question the validity of traditional Christian
teaching that homosexuality was sinful was published by a member of that group, Dr.
Sherwin Bailey, in 1955.
Bailey, at vii.
39. The 1960’s were a turbulent time, when many traditional values were challenged.
Racism, sexism, homophobia and the legal institutions that supported them were
attacked. The Supreme Court of Canada’s decision to confirm the indefinite
incarceration of an “incurable homosexual” in R. v Klippert provoked outrage. Justice
19
Minister Pierre Elliott Trudeau proposed and then implemented the Wolfenden
approach, famously remarking, “the state has no place in the bedrooms of the nation”.
Eskridge 1, at 31, para. 61; R. v. Klippert, [1967] S.C.R. 822 (“Klippert”);
Kinsman, at 260-64.
40. Since the 1960s, North America has witnessed a social and political struggle between
a gay and lesbian community determined to secure equality under the law, and
religious conservatives, who have attempted to preserve and strengthen legal
restrictions on gays and lesbians in an effort to preserve their own religious values in
the law. A notable example was Amendment 2 in Colorado, an amendment to the
Constitution of the State of Colorado, adopted in a 1992 statewide referendum. This
notoriously offensive constitutional amendment proposed to deprive gays and
lesbians of basic civil rights and outlaw discrimination protection for them. The law
was quashed by the US Supreme Court in the 1996 decision in Romer v. Evans.
Romer v. Evans, 517 U.S. 620 (1996) (“Romer”); Hawkes 2, at 26-28, paras. 2933.
41. Some of the most extreme elements in the religious right have continued to advocate
violence against gays and lesbians, including Reverend Fred Phelps, who maintains a
website at www.godhatesfags.com. Bishop Holloway notes that one Anglican Bishop
at the Lambeth Conference stated that there were no homosexuals in Africa, and those
that they found, they stoned.
Hawkes 1, at 44, para. 43; Affidavit of Bishop Richard Holloway, sworn
December 12, 2000, Application Record of the Applicant, MCCT, Vol. 1, Tab 11,
at 173, para. 22 (“Holloway”).
20
42. Both legislators and judges have not hesitated to invoke traditional Christian teaching
in order to defend laws that discriminate against gays and lesbians. For example, in
his reasons in Vriend v. Alberta, a decision that was later reversed by the Supreme
Court of Canada, Justice McClung quoted the United States Supreme Court in
Bowers v. Hardwick with approval. He noted that state refusal to recognize
“homosexual relations” was acceptable, as the recognition of a right to same sex
relations would be “rebutting a millennia (sic) of religious teaching”.
Vriend v. Alberta (1996), 181 A.R. 16 (C.A.) at 28; Bowers v. Hardwick, 478
U.S. 186 (“Bowers”).
43. The trend in Canada has been to increasing equality for gays and lesbians under the
law. However, some groups in society, generally on conservative religious grounds,
have fiercely opposed every statute or judicial ruling aimed at increasing equality for
gays and lesbians. For example, as Dr. Hunt notes, despite the Catholic catechism of
respect for homosexuals as human beings, official Vatican doctrine opposes any
Church support for groups advocating a change in Church doctrine and opposes not
just relationship recognition, but even anti-discrimination protection for gays and
lesbians.
Affidavit of Mary Hunt, sworn May 29, 2001, Reply Record of the Applicant
MCCT, Tab 4, at 79, 80, 84, paras. 2, 7, 8, 18 (“Hunt 2”).
44. In the legislative arena, for example, the Catholic Archbishop of Toronto through his
official spokeswoman and advocate, the affiant Dr. Suzanne Scorsone, actively
encouraged Catholics to oppose Bill 167, (the proposed Equality Rights Statute Law
Amendment Act, 1994). Bill 167 did not propose to re-define marriage, but merely to
21
grant gay and lesbian relationships some of the protections offered to common law
heterosexual couples. Rabbi Novak, also an affiant in the present case, supported
Amendment 2 in Colorado by filing an affidavit supporting the constitutional
exclusion of gays and lesbians from anti-discrimination laws in that State. In the
judicial arena, one example is the case of Vriend, where conservative groups such as
the Evangelical Fellowship of Canada intervened in the Supreme Court of Canada to
argue against the inclusion of “sexual orientation” in Alberta’s human rights
legislation.
Scorsone Transcript, at 177-178, Qs. 56, 57; Hawkes 2, at 26-28, paras. 29-33;
Bill 167, An Act to amend Ontario Statutes to provide for the equal treatment of
persons in spousal relationships, 3rd sess. (1994) (“Bill 167”); Vriend v. Alberta,
[1998] 1 S.C.R. 493; M. v. H., [1999] 2 S.C.R. 3 (“M. v. H.”).
45. Not all religious believers, and not all Christians, share the views of the conservative
religious groups who have opposed equality for gays and lesbians. In Vriend, for
example, the Alberta and Northwest Conference of the United Church and the
Canadian Jewish Congress intervened in support of Delwin Vriend. The United
Church of Canada filed a brief with Parliament supporting Bill C-23, The
Modernization of Benefits and Obligations Act.
Modernization of Benefits and Obligations Act, S.C. 2000, c. 12 (“Bill C-23”);
Affidavit of Rev. Donald Gillies, sworn December 15, 2000, Application Record
of the Applicant, MCCT, Vol. 1, Tab 10, at 148, para. 4 (“Gillies”); Vriend v.
Alberta, [1998] 1 S.C.R. 493.
46. In fact, the social debate that has taken place on equality under the law for gays and
lesbians in the courts and legislatures has experienced a parallel debate within
churches, synagogues, temples and mosques about the appropriate theological
22
position on homosexuality. The record reveals that in addition to UFMCC, many
faiths no longer teach that homosexuality is a sin. These include Reform Judaism: as
Rabbi Stevens notes, “virtually no Reform Jew would regard homosexual acts as
sinful”. These views are shared by many conservative Jews, such as prominent Rabbi
Elliot Dorf. The United Church of Canada recently repealed its previous stance that
homosexuality is a sin, and many congregations have declared themselves to be
“affirming” of lesbians and gays. The Canadian Unitarian Council has a long tradition
of support for lesbians and gays, as does the Society of Friends (Quakers).
Affidavit of Rabbi Elliot Stevens sworn May 29, 2001, Reply Record of the
Applicant MCCT, Tab 5, at 131, 133, paras. 6, 13 (“Stevens 2”); Gillies, at 149,
para. 8; Affidavit of Mark Morrison-Reed, sworn December 15, 2000, Application
Record of the Applicant, MCCT, Vol. 1, Tab 7, at 104, para. 3 (“MorrisonReed”); Hughes, at 124-126, paras. 10, 11, 13, 14.
47. Even within more conservative faiths or denominations, such as Islam, Orthodox
Judaism, the Roman Catholic Church and the Anglican Church, there are those who
disagree with the official dogma that teaches that homosexuality is sinful. One of the
most respected Anglicans in the world, Rt. Reverend Dr. Desmond Tutu, has been
one of those who have spoken out for justice for gays and lesbians. Bishop Richard
Holloway, the former Primus of Scotland, is another prominent Anglican who once
thought of homosexuality as a sin but came to the view that,
“ … the love of Jesus Christ that was extended by Him to social outcasts
in His lifetime, should not be denied by the Church to gays and lesbians.”
Affidavit of Katherine Young, sworn March 14, 2001, Record of the Respondent,
The Attorney General of Canada, Vol. 2A, Tab F, at 698, para. 25; Affidavit of
Rabbi Steven Greenberg, sworn May 31, 2001, Reply Record of the Applicant
23
MCCT, Tab 2, at 14-15, para. 15 (“Greenberg Affidavit”); Exhibit “B” to the
Affidavit of Mary Hunt, sworn December 18, 2000, Application Record of the
Applicant MCCT, Vol. 1, Tab 12, at 178 (“Hunt 1”); Holloway, at 170-171, 172,
paras. 12,19.
48. The evidence reveals that the majority of Canadians profess a religious faith, and that
almost 50% profess the Catholic faith. However, it also appears that a large majority
of Canadians support equality for gay and lesbian relationships. It is thus apparent
that many Canadians of faith support equality for gays and lesbians, regardless of the
“official” teachings of their faith.
Affidavit of Suzanne Scorsone, sworn March 15, 2001, Record of the Respondent
the Attorney General of Canada, Vol. 2A, Tab E, at 632, para. 20 (“Scorsone”);
Hawkes 1, at 48, para. 58; Hawkes 2, at 21, para. 8; Cere, at 26, para. 65; Hunt 1,
at 178; Hunt 2, at 80, 85, paras. 9, 23; Fisher, at 28, paras. 79-80.
49. The alleged prohibition on same sex marriage is the one of the last legal vestiges of
centuries of traditional Christian teaching that has enlisted the law in imposing its
values on others by limiting the rights of gays and lesbians. While hostility to gays
and lesbians may have once represented the view of the Christian majority in our
society, it no longer represents the views of all, perhaps even most, Christians in
Canada. It does not represent the social consensus in our country, and is contrary to
our core equality values and our commitment to a secular society with religious
freedom. To pretend that the alleged legal prohibition on same sex marriage is purely
secular and has nothing to do with religious intolerance of homosexuality would be to
ignore history and social reality. It is nothing more than state enforcement of a
particular conservative or traditional religious teaching.
24
50. It can be seen that, beginning with decriminalization in 1969, Canadian law has
moved increasingly away from enforcement of conservative Christian morality that
views homosexuality as sinful and toward secular recognition of the inherent dignity
and equality rights of gays and lesbians. This case marks one further step on this path.
It marks the confluence of these reforms, and similar reforms that have seen an
increasing secularization and respect for religious diversity in Canadian family law,
as outlined in the following section.
(b) Religion, Marriage and the Law
(i)
History of Marriage to 1793
51. Marriage is unique in our society: it is the only religious ceremony that is also vested
with legal significance by the state, apart from the Coronation. This exceptional
situation is explained by the historical connections between marriage and Christianity
under our law.
52. Notwithstanding the historic links between Christian marriage and our law, the
notion that from time immemorial and across all cultures that marriage has been
recognized as limited to the lawful union of one man and one woman to the exclusion
of all others is a popular myth. For example, marriage has not been exclusively
heterosexual at all times and in all places. Same sex marriages existed in the past in
the Roman Empire, for example, and in the Netherlands today.
25
Eskrdige 1, at 8-9, para. 17; Affidavit of Randolph Trumbach, sworn August 21,
2001, Reply Record of the Applicant Couples, Tab 5, at 181, 182, paras. 2, 6
(“Trumbach 2”).
53. Perhaps the most frequent departure from this allegedly universal norm is the
widespread practice of polygamy. The case law alone reveals that polygamy has been
practiced in Kenya, India, China, the United States of America and in Muslim
countries such as Egypt, countries where, at least at some point in their histories, such
unions have been socially, religiously and legally recognized.
Re Hassan and Hassan (1976), 12 O.R. (2d) 432 (H.C.J.) (“Re Hassan”).
54. Perhaps the best example of the changing nature of conceptions of marriage through
history is in North America itself. Before the introduction of European religions,
values and laws, First Nations did not regulate marriage in the same manner as
Christians. For example, history records that great Lakota chiefs and warriors such as
Sitting Bull and Crazy Horse had many wives, including male winkte spouses. Thus,
it may be fairly said that polygamy and same sex unions are, or at least were, more
“traditional” in our country than monogamous heterosexual unions, because these
forms of marriage pre-date the introduction of the Christian conception of marriage to
this country by millenia.
Eskridge 1, at 23, para. 45; See generally Williams, and especially at 38, 112, 225;
See generally Le Duigou, and especially at 195-198.
55. As will be seen, the historic common law “definition” of marriage developed in
England is an expressly Christian definition. However, the Christian concept of
marriage itself has not been timeless and unchanging, but rather has changed over
26
time according to the cultural context of the surrounding society. The development of
the Christian concept of marriage has also featured a tension between the state and
ecclesiastical authorities.
Murray, at 90.
56. The Christian concept of marriage has Roman, Jewish, Greek and Germanic roots,
but has distinctive features which came to inform our law. Despite Christianity’s
Jewish heritage, a stark contrast exists between the Christian concept of marriage and
the historic Jewish concept of marriage. For the ancient Israelites, divorce was
permitted; marriage was endogamous and was sealed with the giving of brideprice.
Polygamy was commonly practiced among the ancient Israelites as recorded in the
Bible, a custom that continued for Ashkenazi Jews into the Middle Ages and for
Sephardic Jews into the 20th century.
Murray, at 90-91; Exhibit “B” to the Affidavit of Randolph Trumbach, sworn
November 20, 2000, Application Record of the Applicant Couples, Vol. 3, Tab 2,
at 1 (“Trumbach 1”); Stevens 2, at 132, para. 9.
57. Like the Jewish faith, the Christian concept of marriage explicitly rejected the
capacity for childbearing or the need for consummation as conditions for a valid
marriage. However, reflecting the Greek culture of leading early figures in the
Christian Church like Saint Paul, for Christians marriage was exogamous,
monogamous and sealed by the giving of dowry. There was no Christian liturgy of
marriage for the first three centuries of its existence, and marriage was a private act.
The Christian Emperors initially permitted divorce, but it was later strictly forbidden
in the Church. The indissolubility of marriage, marked during weddings with the
27
ritual recitation of the familiar Scriptural phrase “what God has joined together, let no
on separate”, became a hallmark of the Christian concept of marriage for centuries.
Murray, at 90-92; Trumbach 1, at 1-2; Stevens 2, at 132, para. 11; The Bible, at
Mark 10:9.
58. Some respected scholars have written that the Roman practice of blessing same sex
marriages was continued by the Christian Church until medieval times, when the
codification and more consistent enforcement of canon law resulted in a official
hostility by the Christian Church to both same sex marriages and homosexuality in
general.
Murray, at 99-100; Eskridge 1, at 11, 21-22, paras. 22, 41; Boswell 1; Boswell 2.
59. Christian concepts of marriage, like Christian doctrine on homosexuality, were
influenced by negative medieval attitudes toward sexual pleasure in general. As
Bishop Holloway notes:
Although the authors of the Bible apparently did not see sexual matters as a priority,
it was a subject of concern to a number of later prominent Christian theologians,
notably St. Augustine and St. Jerome. From their teachings emerged the notion that
the holiest condition for a Christian was celibacy, and that marriage was a distant
second best for good Christians. Even within marriage, according to their teaching
sex was only to be for the purposes of procreation and sex for pleasure even between
married persons was sinful. … I believe that these Medieval Christian teachings,
teachings that are very negative about sex in general, still influence the thinking of
many Christians today, including their attitudes toward homosexuality.
Murray, at 100-101; Holloway, at 170, para. 9.
60. While embracing the Roman concept of consent as the foundation of marriage,
Christianity developed a theology that was at odds with polygamy, same sex unions
and divorce. Moreover, Christianity’s emphasis on the primordial nature of consent
28
rejected the notion that slaves or serfs lacked the capacity to marry without the
consent of their owners or lords, for otherwise they might be consigned to committing
the mortal sin of fornication. This put the Church in conflict with medieval secular
society, a society in which marriages were often controlled by families or lords for
political or economic purposes. After over a thousand years of Christian history, by
the 13th century canon law had codified Christian marriage in a manner that became
widely accepted in Europe.
Murray, at 94, 97.
61. The medieval Christian consensus on marriage that had taken a millennium to build
began to unravel during the Reformation. Christians had always refused to recognize
the marriages of Christians to “unbelievers”. The Reformation rift in the Christian
Church between Protestants and Catholics thus caused a rift in the Christian concept
of marriage: the question arose as to the validity of marriages between Protestants and
Catholics. In addition, many Protestants also rejected the notion of marriage as a
sacrament, and so some permitted divorce.
Murray, at 98, 99.
62. Marriage remained under the exclusive jurisdiction of the ecclesiastical authorities in
England until 1753 when the first statute regulating marriage was enacted, known as
Lord Hardwicke’s Act. This Act recognized the marriages of the Established Church,
the Church of England, as valid marriages. All other religious marriages had no legal
recognition and there was no concept of civil marriage outside of a religious
ceremony. The Act recognized two exceptions to this religious monopoly of the
29
Church of England, the marriages of Quakers and of Jews. In addition, the Act by its
terms did not apply to the colonies beyond the seas.
An Act for the better preventing of clandestine marriages, 26 Geo. II 7, c.33 (“Lord
Hardwicke’s Act”).
(ii)
Marriage in Ontario – from English Rule in 1763 to 1950
63. Following the Royal Proclamation of 1763, the rights and privileges of the Catholic
Church were preserved in the Province of Quebec. These were later confirmed and
expanded in the Quebec Act of 1774. Although the Province, which included present
day Ontario, was under the ecclesiastical authority of the Anglican Bishop of London,
Governor Murray was given authority by the Crown to issue marriage licenses.
J.J. Talman, “The Position of the Church of England in Upper Canada 17911840”, 1934 Canadian Historical Review 361, at 361-363 (“Talman”); Scorsone,
Appendix B, at 653.
64. Aboriginal marriages received a unique treatment under English law. The Courts
recognized that one could not travel three thousand miles by canoe and on foot to
conform to the English rules of marriage, and that the native population was “for the
most part unchristianized”. Thus aboriginal forms of marriage were given legal
recognition, but only to the extent that they did not offend British Christian
conceptions of marriage. Aboriginal spiritual and cultural marriage practices and
beliefs that were morally offensive to the British were characterized as either mala in
se or “incidental” to aboriginal custom, and therefore legally unenforceable. This
partial respect for traditional aboriginal marriage beliefs and practices lead to the
anomalous result that, while aboriginal customs would be recognized to the extent of
creating a legally valid heterosexual marriage, a second such marriage, though
30
equally valid in accordance with native custom, would justify a criminal conviction
for bigamy. Male winkte relationships were also criminalized under English laws of
buggery that until 1861 imposed the death penalty on offenders, and the winkte were
persecuted by the church and state alike.
The Queen v. Bear’s Shin Bone (1899), 3 C.C.C. 329 (S.C. N.W.T.); Regina v. NanE-Qui-A-Ka (1889), 1 Terr. L.R. 211 (S.C.); Connolly v. Woolrich (1867), 17
R.J.R.Q. 25, 11 L.C. Jur. 1973 [aff’d] (1869), 17 R.J.R.Q. 266, 1 C.N.L.C. 151 (Que.
Q.B.); Le Duigou, at 201-202; M. Walters, “The “Golden Thread” of Continuity:
Aboriginal Customs at Common Law and Under the Constitution Act, 1982” (1999),
44 McGill L.J. 711, at 716, 721, 724-726, 727-729, paras. 10, 17, 23, 25-26, 29-30;
Bailey, at 151; Williams at 131-151, 180-181.
65. Loyalists founded Upper Canada, the future Province of Ontario. Many Loyalists had
supported the concept of an Established Church in the Revolutionary War. Ontario’s
first marriage law thus reflected the Loyalist commitment to attempting to “establish”
the Church of England in Ontario. However, it made a concession to the social
conditions prevailing in the young colony that apparently included a shortage of
clergy and considerable informality in marriage. The Act ratified the “marriages”
that had been performed in the colony to that point by a variety of public officials
including the “Surgeon of the Regiment”. Authority was extended to Justices of the
Peace to marry, but only until adequate numbers of Anglican clergy became available
in their Districts. Otherwise, Upper Canada’s marriage law was even less religiously
tolerant than the English statute. Only Church of England marriages were given legal
recognition, with no exception for Jews and Quakers. All other Christian marriages
were not recognized in law, let alone any non-Christian marriages.
Talman, at 373-374; An Act to confirm and make valid certain marriages now
comprised within the Province of Upper Canada, and to provide for future
31
solemnization of marriage within the same, 33 Geo. III, c.5 (“Ontario Marriage
Act of 1793”).
66. The erosion and eventual demise of the notion of an Established Church or state
religion in Ontario was reflected in the colony’s changing marriage laws, which
gradually extended legal recognition to the marriages of other Protestant
denominations and eventually recognized all Christian marriages, finally including
Catholic marriages, in 1847. The civil marriage license was introduced to
accommodate other faiths that did not follow the Anglican practice of banns.
An Act to extend the Provisions of the Marriage Act of Upper Canada to
Ministers of all denominations of Christians, 10&11 Vic., c. 18 (“Marriage Act of
1847”); Talman, at 361-375.
67. Eventually, in 1857 legal recognition was extended to the marriages of all religious
faiths in what is now Ontario. Criminal penalties were reserved for those posing as
licensed clergy. Jewish marriages, legally valid for over a century in England, were
finally given legal recognition in Ontario.
An Act to amend the laws relating to the solemnization of Matrimony in Upper
Canada, 20 Victoria, c. 66 (“Ontario Marriage Act of 1857”).
68. In 1950, marriage was finally permitted through a purely civil ceremony by a judge or
other official. This ended the religious monopoly on marriage that had existed in
Ontario for over one hundred years. The law would further relax its theological grip
on marriage and other relationships in the continuing human rights and sexual
revolution.
Marriage Act, 1950, S.O. 1950, c. 42, s. 25.
32
(iii)
Secularization in the modern era and the legal recognition of non-traditional
heterosexual relationships
69. Traditional Christian beliefs were used to justify anti-miscegenation laws in the
United States. The legal prohibition on inter-racial marriage was defended as arising
not from legal inequality but from a lack of capacity stemming from the “natural”
state of the persons that had been “ordained by God”. The United States Supreme
Court rejected this religious or “natural law” justification for this restriction on the
freedom to marry in 1967.
Loving v. Virginia, 388 U.S. 1 (1967) (“Loving”); Eskridge 1, at 38-39, paras. 7881; Hawkes 1, at 42, para. 39; Affidavit of Barry Adam, sworn November 15,
2000, Application Record of the Applicant Couples, Vol. 3, Tab 4 at 8-9, para.29
(“Adam”).
70. Canada’s marriage laws had never fully embraced all conservative Christian teaching
on marriage. Roman Catholic and Anglican Churches did and still do prohibit
divorce, and while divorce had been difficult to obtain in the past, it had always been
permitted since Confederation. Moreover, Canada’s divorce law by 1970 was
secularized to permit divorce in a wide variety of circumstances contrary to
conservative Christian teaching.
Divorce Act, S.C. 1967-68, c. 24, (later R.S.C. 1970, c. D-8); Report of the
Special Joint Committee of the Senator and House of Commons on Divorce,
Ottawa: Information Canada; 1967, Record of the Respondent, the Attorney
General of Canada, Vol. 7, Tab 12, at 2033 – 2040; W. H. McConnell,
Commentary on the British North America Act, (Toronto: MacMillan, 1977),
Record of the Respondent, The Attorney General of Canada, Vol. 6, Tab 0.1, at
1715 – 1718; Answers to Written Interrogatories by The Interfaith Coalition on
Marriage and Family (“Interfaith Answers”), Answers of Abdalla Idris Ali, Tab 1,
at 1-2, Answers of Dr. Cere, Tab 4, at 1-2, Answers of Ernest Caparros, Tab 5, at
1-2.
33
71. In 1978, the Family Law Reform Act (“FLRA”) was introduced. The Act extended
statutory recognition for the first time to heterosexual couples that had been “living in
sin” or “without benefit of clergy”. The courts also began to expand unjust
enrichment doctrine to protect those in such “common law” relationships. This was
another important secular legal reform that was contrary to conservative Christian
teaching that views unmarried heterosexual relationships as immoral.
Family Law Reform Act, S.O. 1978, c. 2 (“FLRA”); Pettkus v. Becker [1980] 2
S.C.R. 834; Hawkes 2; Interfaith Answers, Answers of Dr. Cere, Tab 4 at 6-7.
72. Since 1978, the rights and responsibilities of common law couples in Canada have
been expanded, notably by Bill C-23, the Modernization of Benefits and Obligations
Act, where the rights and responsibilities of common law couples and married couples
were largely equalized. The Supreme Court of Canada in Miron has indicated that
distinctions between married and unmarried couples are constitutionally suspect.
Despite this, important distinctions remain in the laws of Ontario.
Modernization of Benefits and Obligations Act, S.C. 2000, c. 12; Miron v. Trudel,
[1995] 2 S.C.R. 418; An Act to Amend Certain Statutes Because of the Supreme
Court Decision in M. v. H, S.O. 1999, c. 6.
(iv)
Secularization and the legal recognition of same sex relationships
73. The question of legal recognition of same sex marriage did not arise prior to 1969 in
Canada, in part, because for a man to concede that he was in a homosexual
relationship prior to 1969 would be to admit committing a criminal offence and to
risk indefinite incarceration. Although lesbians had never faced this legal risk,
pervasive homophobia and misogyny had both erased their existence and ensured that
34
public proclamation of their relationships would attract a high social penalty. In
addition, Churches that taught that homosexuality was sinful would not have been
willing to publish banns of marriage prior to the re-examination of theology sparked
by the Wolfenden Commission.
See generally, R. v. Klippert, [1967] S.C.R. 822.
74. In 1968, UFMCC began blessing “holy unions”. In 1974, a Winnipeg couple
consisting of two men married in the Canadian Unitarian Council following the
publication of banns. However, the Manitoba County Court ruled that the marriage
was a nullity.
Re North et al. and Matheson (1974), 52 D.L.R. (3d) 280 (Man. Co. Ct.) at 281,
285 (“North”); Eskridge 1, at 32-33, para. 62.
75. The legal recognition of same sex relationships began in Sweden, quickly followed
by Denmark, where there were systems of registered domestic partnerships
introduced, beginning in 1989. This type of system is now in place in many European
nations at the national level, such as the Netherlands, as well as at the regional level
in places such as Vermont and Nova Scotia.
Eskridge 1, at 33-34, paras. 64-67; Law Reform (2000) Act, S.N.S. 2000, c. 29.
76. Unlike in Europe, legal recognition of same sex relationships in Canada began with
the Courts in the Charter era rather than the legislatures. The first such case was
Veysey, and there were a series of cases leading up to two landmark Supreme Court
decisions in Egan v. Canada and M. v. H. There were also a number of legislative
initiatives largely spurred by these rulings.
35
Veysey v. Canada (Commissioner of the Correctional Services), [1990] 1 F.C.
3221 (T.D.) (aff’d on other grounds by the Court of Appeal on May 31, 1990,
Court File A-557-89); Egan v. Canada, [1995] 2 S.C.R. 513 (“Egan”); M. v. H.,
[1999] 2 S.C.R. 3; and see Eskridge 1, at 34, para. 67; An Act to Amend Certain
Statutes Because of the Supreme Court Decision in M. v. H, S.O. 1999, c. 6;
Modernization of Benefits and Obligations Act, S.C. 2000, c. 12.
77. Only two of the Charter era cases have considered same sex marriage. The Supreme
Court in M. v H. expressly and correctly excluded any comment on marriage, as
marriage was not in issue in that case. The current state of the law following M. v H.
is that legal distinctions between common law heterosexual couples and same sex
couples are constitutionally suspect.
M. v. H., [1999] 2 S.C.R. 3, especially at 48-49, Layland v. Ontario (Minister of
Consumer and Commercial Relations) (1993), 14 O.R. (3d) 658 (Div. Ct.);
EGALE Canada Inc. et. al. v. Attorney General of Canada et. al. (2001),
B.C.S.C. 1365 (“EGALE”).
78. The Ontario Legislature passed Bill 5, An Act to Amend Certain Statutes Because of
the Supreme Court Decision in M. v. H., to address the issue of same sex couples.
Unlike Bill C-23, no attempt was made to equalize the rights of married persons and
common law heterosexual couples. Accordingly, Ontario not only denies access to
marriage to same sex couples, it also imposes an inferior regime of rights and
responsibilities on common law couples. Ontario also went to the lengths of using
separate nomenclature to label same sex couples as distinct, and, it is submitted,
inherently inferior to heterosexual couples.
An Act to Amend Certain Statutes Because of the Supreme Court Decision in M. v.
H, S.O. 1999, c. 6; Modernization of Benefits and Obligations Act, S.C. 2000, c.
12.
36
79. In addition to the Ontario Legislature, a number of provincial legislatures have
extended some of the rights and obligations of common law couples to same sex
couples, but none have done so in the comprehensive fashion of the Federal
Parliament in Bill C-23.
See e.g. Law Reform (2000) Act, supra; Modernization of Benefits and
Obligations Act, S.C. 2000, c. 12.
80. The Netherlands is now the first country to pass a law recognizing same sex
marriages, a trend which may continue in other European nations.
Eskridge 1, at 33, para. 65; Affidavit of Dr. William N. Eskridge Jr., sworn August
2, 2001, Reply Record of the Applicant Couples, Tab 4, at 170-171 (“Eskridge
2”).
(v)
The religious debate on recognizing same sex relationships
81. The legal recognition of same sex relationships has been paralleled by a religious
debate about the blessing of same sex relationships and same sex marriage. There is a
wide spectrum of religious opinion in Canada today revealed in the record. The
dogma of some faiths, such as that of the Catholic Church, is hostile to same sex
marriage. However, as Dr. Hunt notes, as with other Church teachings on sexuality,
some Catholics do not support this teaching. Some such as Rabbi Greenberg would
not offer same sex marriage within their own faith, but would not deny it to others of
a different faith. Some such as Bishop Holloway of the Anglican Church openly
reject the dogma of their faith and advocate for the right to choose same sex marriage.
Some would bless same sex relationships, but are uncertain about marriage. Some
faiths are not dogmatic, but leave the question of blessing same sex unions or even
37
marriages to the individual congregation or clergy, such as the United Church,
Reform Judaism and the Quakers. Some denominations officially support same sex
marriage as part of their dogma, including the Canadian Unitarian Council and
UFMCC.
Hunt 1; Hunt 2, at 80-81, paras. 9-14; Greenberg Affidavit; Holloway; Gillies;
Affidavit of Rabbi Elliot L. Stevens, sworn December 14, 2000, Application
Record of the Applicant MCCT, Vol. 1, Tab 9 (“Stevens 1”); Stevens 2; Hughes;
Morrison-Reed; Hawkes 1.
82. It is impossible to know the views of the majority of Canadians with certainty on the
matter in issue. The record reveals that most Canadians profess some religious belief,
with the largest group being Catholics. It also reveals, however, that a very large
percentage of Canadians support equality for lesbians and gays, and a majority of
Canadians appear to support legal recognition of same sex marriage. This indicates
that many Canadians either disagree with the orthodox dogma of their faiths or
believe that such theology is a private matter that should not interfere with the equal
recognition of same sex relationships under the law.
Hawkes 2, at 21, 23, para. 8, 17; Cere, at 26, para. 65; Fisher, at 28, para 79;
Transcript of the Cross-examination of John Fisher dated June 19, 2001, at 24,
55-61.
(vi)
History of Legal Recognition of Banns of Marriage
83. The concept of “banns of marriage” is an ancient one, with a lengthier pedigree than
civil licenses. As a Christian ritual it was formally adopted and codified by the
Lateran Council of 1215. It involves a proclamation in the parish church of the couple
of their intention to marry, by tradition during divine service on the three Sundays
38
preceding the wedding. The aim was to detect impediments, such as a prior marriage
or vow of celibacy, which might not be revealed by the more informal weddings that
had often taken place prior to that time.
Murray, at 96-97
84. The practice of banns was continued by the Anglican Church following Henry VIII’s
break with Rome over the dissolution of his marriage with Catharine of Aragon.
When marriage was first regulated in England in Lord Hardwicke’s Act in 1753, the
aim reflected in the official title of the Act was to avoid “clandestine marriages”. The
Act emphasized the need for banns for a valid marriage, except for the Quakers and
the Jews.
Lord Hardwicke’s Act.
85. Although Lord Hardwicke’s Act did not apply to Upper Canada, the legislature of
Upper Canada endorsed the practice of banns as the usual method of creating a legal
marriage in its first marriage law. A substitute of a public notice was required where
the marriage was by justice of the peace, such marriages being permitted only while
there was a shortage of clergy.
Lord Hardwicke’s Act, s. 18; Ontario Marriage Act of 1793.
86. Eventually, when the statute recognized the validity of marriages by other Christian
denominations, provision was made for the issuance of licenses by the civil
authorities as a substitute for the publication of banns.
An Act to extend the provisions of an Act passed in the second session of the First
Provincial Parliament of Upper Canada, intituled, “An Act to confirm and make
39
valid certain marriages now comprised within the Province of Upper Canada,
and to provide for future solemnization of marriage within the same” 38 Geo. III
c.4, s. 4-5.
87. The authority of churches to marry by publication of banns has been continued in
every Ontario statute to the present day.
Marriage Act, R.S.O. 1990, c. M.3, s. 5.
(v)
Summary
88. It can be seen that the legislative and judicial trend, from the 19th century to the
present, and with rapid acceleration during the Charter era, has been to increasing
secularization of our marriage laws, increasing respect for a wide range of religious
beliefs and to legal recognition of enduring committed relationships, whether or not
they conform to conservative Christian teaching. The alleged bar to same sex
marriages is the last remnant of an archaic and discriminatory legal regime that
imposed conservative Christian values on all Canadians regardless of their beliefs
through the instrument of Canadian family law.
II
THE FREEDOM TO MARRY
89. Canadians have the freedom to marry. This right has four sources:
a. at common law, a freedom to marry has been recognized;
b. international treaties to which Canada is a signatory confer an express
right to marry;
40
c. the Charter section 2 (a) contains a freedom of religion that should be
interpreted in a manner consistent with international law, conferring a
constitutional freedom to marry, and
d. the Charter section 2(d) guarantees freedom of association, and should be
interpreted in accordance with international law as conferring a
constitutional freedom to marry, and
e. the Charter section 7 should be interpreted in accordance with
international law as conferring a right to choose to marry.
(a)
Common Law
90. The Supreme Court of Canada in Morgentaler quoted with approval the following
statement about the freedom to marry from the decision of the United States Supreme
Court in Loving v. Virginia:
The freedom to marry has long been recognized as one of the ‘vital
personal rights essential to the orderly pursuit of happiness by free men.
Marriage is one of the ‘basic civil rights of man’, fundamental to our very
existence and survival … [The] freedom to marry … resides with the
individual …”
Loving v. Virginia, 388 U.S. 1 (1967) at 12, quoted in R. v. Morgentaler,
[1988] 1 S.C.R. 30 at 169 (“Morgentaler”); Baker v. Canada, [1999] 2
S.C.R. 817 at 862 (“Baker”).
(b)
International law
91. The United Nations Declaration of Human Rights recognizes in Article 16, at
paragraph 1, the right of all persons to marry. Canada is a signatory of this Treaty.
The section provides:
41
1.
Men and women of full age, without any limitation due to race,
nationality or religion, have the right to marry and found a family.
They are entitled to equal rights as to marriage, during marriage
and at its dissolution.
Universal Declaration of Human Rights, G.A. Res. 217A, 3 U.N. GAOR., Pt. I,
U.N. Doc. A-810 (1948) adopted by the General Assembly of the United Nations
on December 10, 1948, Article 16.
92. Similar rights can be found in the International Covenant on Civil and Political
Rights, article 23, at paragraphs 1, 2, 4, and the American Convention on Human
Rights, Article 17, at paragraph 7.
International Covenant on Civil and Political Rights, G.A. Res. 2200A, 21 U.N.
GAOR, Supp. No. 16, U.N. Doc. A-6316 (1966), adopted by the General
Assembly on December 16, 1966 and which entered into force on March 23, 1976
Article 23; American Convention on Human Rights, O.A.S. Treaty Series No. 36,
1144 U.N.T.S. 123 entered into force July 18, 1978, Article 17.
93. There is no language in these treaty provisions that would limit marriage to persons of
the opposite sex or which would exclude homosexuals from the protection of
international law. In fact, the United Nations Human Rights Committee (UNHRC)
has found that discrimination against gays and lesbians violates international equality
rights guarantees. The law of Canada, including the common law, is to be interpreted
in a manner consistent with international law.
Toonen v. Australia Communication No. 488/1992, U.N. Doc.
CCPR/C/50/D/488/1992 (1994) (Human Rights Committee) (“Toonen”); Baker v.
Canada, [1999] 2 S.C.R. 817 at 862.
42
(c)
Freedom of religion or conscience
94. Section 2(a) of the Charter guarantees “freedom of religion and conscience”.
Marriage is an institution with such deep religious roots that it pre-dates the common
law. Regulation of marriage was left under the jurisdiction of the ecclesiastical courts
for centuries. As long ago as 1893, the Ontario Courts recognized marriage as a
manifestation of religious belief protected by freedom of religion. The state continues
to permit churches, synagogues, mosques and temples to set their own criteria for
marriage and to determine how persons achieve the status of married persons. For
many, including MCCT and its members, marriage is a manifestation of their
religious beliefs and practices. As a result, the freedom to marry should be construed
to be an incident of freedom of religion, especially as it accords with international
law.
See for example, Lord Hardwicke’s Act, s. 7; Eskridge 2, at 173-174, para. 11; R.
v. Dickout (1893), 24 O.R. 250 (Q.B.) (“Dickout”); Baker v. Canada, [1999] 2
S.C.R. 817 at 862.
(d)
Freedom of association
95. Section 2(d) of the Charter guarantees “freedom of association”, one of the most
fundamental rights in a free society. Freedom of association is particularly important
for the exercise of other fundamental freedoms, such as freedom of religion. It is
difficult to conceive of a chosen human association more intimate and more
significant than marriage.
43
“Man, as Aristotle observed, is a ‘social animal, formed by nature for living with
others,’ associating with his fellows both to satisfy his desire for social
intercourse and to realize common purposes.”
L. J. MacFarlane, The Theory and Practice of Human Rights, (1985) at 82, cited
with approval in the minority concurring analysis of McIntyre J. in Reference Re
Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313 at 395
(“Reference Re Public Service”).
96. The Supreme Court of Canada has held that the institution of marriage might well be
protected by freedom of association in combination with other rights and freedoms,
although freedom of association would have no bearing on the legal consequences of
marriage, such as control or ownership of matrimonial property. Interpreting s. 2(d)
in this manner also accords with international law. Justice Pitfield erred in finding this
freedom was not implicated because this freedom does not generally arise within
families. This ignores the fact that marriage is an association of unrelated persons
seeking to form family, not a relationship that arises within an existing family.
Reference Re Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R.
313 at 393 (minority concurring analysis of McIntyre J. adopted by the majority
in this respect); Black v. Law Society of Alberta, [1986] 3 W.W.R. 590 (Alta.
C.A.) (Kerans J.A.); Baker v. Canada, [1999] 2 S.C.R. 817 at 862; EGALE
Canada Inc. et. al. v. Attorney General of Canada et. al. (2001), B.C.S.C. 1365.
(e)
Right to life and liberty
97. Section 7 of the Charter reads:
Everyone has the 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.
98. With respect, the analysis of section 7 by the Court in EGALE exhibits a tautology or
circular reasoning. Because the Court assumes marriage can only be heterosexual, it
44
finds that there is no infringement of section 7. This is circular reasoning, and a
substitute for analysis rather than an analysis. The characterization of marriage as a
“status created by law” does not exclude the application of section 7. Rather, it
underlines the state interference of which this applicant complains: the state grants
legal recognition of some religious marriages and not others. It forces members of
MCCT who wish to marry to choose someone who is considered acceptable as a mate
in the eyes of the state and other faiths, despite the teachings of MCCT. Justice
Pitfield ought to have followed the same approach to section 7 that the His Lordship
followed with section 15, namely to defer the question of whether limiting access to
marriage to heterosexual couples is justified to the section 1 analysis.
EGALE Canada Inc. et. al. v. Attorney General of Canada et. al. (2001),
B.C.S.C. 1365.
99. Interpreting the freedom of association to encompass a freedom to marry would be in
accordance with international law. It would also accord with persuasive dicta from
the Supreme Court of Canada. Justice Wilson, in Singh v. Minister of Employment
and Immigration, cited with approval the liberal approach of the United States
Supreme Court in Board of Regents of State College v. Roth to liberty, where the
Court said:
Without doubt, [liberty] denotes not merely freedom from bodily restraint, but
also the right of the individual to contract, to engage in any of the common
occupations of life, to acquire useful knowledge, to marry, establish a home and
bring up children, to worship God according to the dictates of his own conscience,
and generally to enjoy those privileges long recognized . . . as essential to the
orderly pursuit of happiness by free men.” Meyer v. Nebraska, 262 U.S. 390 at
399. In a constitution for a free people, there can be no doubt that the meaning of
“liberty” must be broad indeed. (emphasis added)
45
See e.g. Bolling v. Sharpe, 347 U.S. 497, at 499-500; Stanley v. Illinois, 405 U.S.
645; Board of Regents of State College v. Roth, 404 U.S. 909; Singh v. Minister of
Employment and Immigration, [1985] 1 S.C.R. 177 at 205 (“Singh”); Baker v.
Canada, [1999] 2 S.C.R. 817 at 862.
III
NO SUBSISTING COMMON LAW RESTRICTION
100.
There is no subsisting common law restriction of the right to marry to “one man
and one woman to the exclusion of all others”.
101.
The three Canadian cases that have identified such a restriction, Re North and
Matheson (a pre-Charter case), Layland v. Ontario and EGALE v. Canada ( postCharter cases) have erroneously relied on the 19th century case of Hyde v. Hyde and
Woodmansee (“Hyde”). The Hyde decision has been misinterpreted in this regard.
When placed in its appropriate historical, legal, and factual context, it is clear that the
decision in Hyde is no longer good law in Canada.
Re North et al. and Matheson (1974), 52 D.L.R. (3d) 280 (Man. Co. Ct.); Layland
v. Ontario (Minister of Consumer and Commercial Relations) (1993), 14 O.R.
(3d) 658 (Div. Ct.) (“Layland”); Hyde v. Hyde & Woodmansee (1866), L.R. 1
P&D 130 (“Hyde”).
102.
Hyde decided a particular point in law: whether a man could obtain a divorce
from his wife in England where the marriage was a potentially polygamous foreign
marriage that was valid in the jurisdiction where it was solemnized. In fact, the House
of Lords stressed at the end of their decision that “this decision is confined to that
object”. However, the case has been marshaled inappropriately as authority for an
alleged common law bar to same sex marriage. The full quotation from Lord
46
Penzance in Hyde, whose speech is the apparent source for the so-called common law
definition of marriage, is:
“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).
As Justice Cory later noted in Re Hassan, the House of Lords in Hyde was defining
“a Christian marriage”.
Hyde v. Hyde & Woodmansee (1866), L.R. 1 P&D 130 at 133; Re Hassan and
Hassan (1976), 12 O.R. (2d) 432 (H.C.J.) at 434.
103.
The analysis of Lord Penzance in the case makes it clear that his common law
definition was based on an abhorrence of “Turkish and other infidel marriages” that
were valid polygamous marriages in their homelands, but which treated the “weaker
sex” in a “revolting” manner. This reveals both the conservative Christian bias of the
common law rule propounded, and the fact that there was no universality of the
propounded definition, outside of “Christian nations”, even in the 19th century world
of Hyde.
Hyde v. Hyde & Woodmansee (1866), L.R. 1 P&D 130 at 133, 134, 136.
104.
Hyde specifically refused to recognize a potentially polygamous Mormon
marriage because it was found not to be a “Christian marriage”. However, less than
30 years later, in Ontario, the Court of Queen’s Bench reached a different conclusion.
The Court expressly rejected arguments by the Crown that sought to characterize the
Mormon faith as “not Christian” and Christianity as the “law of the land”. Chief
Justice Armour concluded his brief reasons in support of quashing the conviction of a
47
Mormon minister for illegally performing a marriage with these words in respect of
the Marriage Act then in effect:
“The statute should receive a wide construction. It does not say “Christian” but
“religious”. If it said “Christian” it would exclude Jews. The fundamental law of
the Province makes no distinction between churches or denominations. Every
person is at liberty to worship his Maker in the way he pleases. We have, or ought
to have, in this country, perfect freedom of speech and perfect freedom of
worship.”
R. v. Dickout (1893), 24 O.R. 250 (Q.B.) at 254.
105.
The development of the law interpreting Hyde was carefully reviewed by Justice
Cory in the pre-Charter case of Re Hassan. Justice Cory pointed out that the harsh
and discriminatory effect of Hyde had been criticized as inappropriate in Canada’s
multicultural society for some time prior to 1976 when Re Hassan was decided. The
case had been overruled first by case law and then by statute in England. Justice Cory
found that Hyde, if it ever was the law of Ontario, was no longer the law of Ontario in
1976. The Divorce Act now expressly provides relief contrary to the ratio decidendi
of Hyde. Hyde is no longer the law of Canada.
Re Hassan and Hassan (1976), 12 O.R. (2d) 432 (H.C.J.) at 434, 436, 439;
Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 3.
106.
With due respect to the decision of Justice Pitfield in EGALE, His
Lordship erred in his analysis of Hyde. In fairness, the Court may have considered
itself bound by an earlier ruling by the B.C. Court of Appeal, a decision that is not
binding on this Honourable Court. There is no discussion of the Ontario case of
Re Hassan. Justice Pitfield appears to rely on the incorporation of Hyde into the
law of British Columbia by section 6 of the Marriage Act, R.S.B.C. 1996, c. 282.
48
As we have seen, Hyde never defined capacity to marry in Canadian law and has
not been the law of Ontario since at least 1976. After British Columbia’s
accession to Confederation, that province had no authority over capacity to marry.
Any provincial legislative attempt to preserve or revive the Hyde capacity
definition would be clearly ultra vires the province.
107.
In considering the applicability of Hyde to the facts in issue, the social and
historical context of the decision must be considered as well. The influence of
ecclesiastical law that had previously exclusively regulated marriage was still strong.
The decision reflects attitudes to non-Christian faiths, non-Caucasian races and
women that were common enough in Victorian England, but which are at odds with
the culture of human rights in 21st century Canada. England had an Established
Church in 1866, and the only marriages that were recognized outside of the
Established Church were the limited statutory exceptions of Jewish and Quaker
marriages. As to same sex relationships, in the Victorian world of Lord Penzance,
capital punishment for buggery had only recently been repealed in England and was
still in effect in Scotland.
Bailey, at 150-152.
108.
Moreover, even if Justice Cory was wrong in concluding that Hyde was no longer
the law in Ontario by 1976 and prior to the Charter, the Courts have consistently held
in cases such as Swain, Hill v. Church of Scientology, Dolphin Delivery and Salituro
that the common law must be interpreted in a manner that is consistent with the
Charter. To enforce any Christian definition of marriage as the legal definition of
49
marriage is patently offensive to the Charter’s guarantees of freedom of religion and
freedom from religious discrimination. The fact that some other religions may purport
to share a similar definition cannot disguise the expressly Christian nature of the
Hyde definition.
R. v. Swain, [1991] 1 S.C.R. 933 (“Swain”); R. v. Salituro, [1991] 3 S.C.R. 654
(“Salituro”); Hill v. Church of Scientology, [1995] 2 S.C.R. 1130; R.W.D.W.U. v.
Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; R. v. Big M Drug Mart Ltd., [1985]
S.C.R. 295 at 337, 353.
109.
What may have been a sensible interpretation of the “definition” of marriage in
Christian England in the 19th century can have no application to the multicultural
society of 21st century Canada. Moreover, Hyde was “a” Christian definition of
marriage. The evidence in this case, evidence that was not before the Court in EGALE
v. Canada, makes clear that even many Christians today would not agree with a
definition of marriage that excludes same sex couples, including members of the
Applicant Church. In a case such as this, the Court has:
“the responsibility of modifying the common law so as to make it
constitutional in all its dimensions.”
R. v. Swain, [1991] 1 S.C.R. 933 at 1034; Hawkes 1; Holloway.
110.
Layland and North also relied on the English case of Corbett v. Corbett. That case
is a trial level decision of an English Court and is not binding on this Honourable
Court. Although Justice Ormrod does not cite Hyde in support of his assertion of the
allegedly timeless heterosexual nature of marriage, His Lordship must have been
cognizant of this earlier definition from a higher English Court. As the Court
50
identifies no evidence or legal precedent for this bald definition, it should be given
little weight.
Layland v. Ontario (Minister of Consumer and Commercial Relations) (1993), 14
O.R. (3d) 658 (Div. Ct.) at 662; Re North et al. and Matheson (1974), 52 D.L.R.
(3d) 280 (Man. Co. Ct.) at 284-5; Corbett v. Corbett (Ashley), [1970] 2 All E.R.
33 (“Corbett”).
111.
Corbett also dates from a period when England had only recently decriminalized
private male homosexual acts. There is still no entrenched bill of rights in English
law, and no widespread recognition of the legal rights and obligations of same sex
couples in England, contrary to the situation in much of Europe. Most advances for
gays and lesbians in England have been imposed by the European Court of Human
Rights. In fact, English statute law still characterizes same sex relationships as
“pretended family relationships”.
Local Government Act 1988, c. 9, s. 28(1)(b); Grant v. South West Trains Ltd.
Case C-249/96, [1998]E.C.R. I-621; Affidavit of Dr. Robert Wintemute, (not
sworn), Reply Record of the Applicant Couples, Tab 7, at 210, 219, paras. 2, 14
(“Wintemute”).
112.
With its preoccupation with identifying scientifically the gender of the transsexual
spouse, Corbett also evidences attitudes discriminatory toward transsexuals that are
not in keeping with the human rights culture of Canada, where transsexuals enjoy
protection from discrimination under human rights law. Corbett should be given no
more consideration in the Canadian context than Bowers. It is not the law of Canada,
despite Justice Pitfield’s erroneous reliance on it in EGALE v. Canada.
51
Bowers v. Hardwick, 478 U.S. 186; Vancouver Rape Relief Society v. British
Columbia (Human Rights Commission) (2000), 23 Admin. L.R. (3d) 91; Policy
on Discrimination and Harassment because of Gender Identity, Ontario Human
Rights Commission (approved by the Commission March 30, 2000); M.L. and
Commission des droits de la personne et des droits de la jeunesse du Québec v.
Maison des jeunes, [1998] J.T.D.P.Q. no 31 (Human Rights Tribunal).
113.
Since only an alleged common law restriction is in issue, at best, there can be no
need for legislative deference, for it is judges who have fashioned this rule and can
modify it. Although this change is significant and important, both for its substantive
and symbolic content, given the context of increasing recognition of same sex
relationships through legislation and judicial rulings in this and other democracies, it
must be seen as an incremental rather than a radical change.
IV
NO LEGISLATIVE BAR TO SAME SEX MARRIAGES
114.
Some have suggested that s 1.1 of Bill C-23 constitutes a statutory bar to same sex
marriage. This is incorrect for a variety of reasons. First, the language used is
intended as a guide to interpreting a statute that expanded recognition of lesbian and
gay relationships. This may be contrasted, for example with the United States Defense
of Marriage Act. Second, the language of the clause begins “Nothing in this Act
affects the definition of marriage…”. It can scarcely be argued that a clause that says
it does not affect the definition of marriage not only affects the definition of marriage,
it actually creates a definition of marriage. Third, while Parliament may have been
expressing its understanding or interpretation of the common law, it is not the role of
52
Parliament to interpret the common law. That role is reserved exclusively to the
Courts under our system of government.
Modernization of Benefits and Obligations Act, S.C. 2000, c. 12; Defense of
Marriage Act, United States Public Laws, 110 Stat. 2419 (104th Congr., 2nd Sess),
adding to U.S. CA title 28, c.115, a new section 1738C, and adding to U.S. CA
title 1, c1, new section 7; R. v. Salituro, [1991] 3 S.C.R. 654 at 670, 673, 675 and
678.
V
FREEDOM OF RELIGION
115.
Freedom of religion is a fundamental right of all Canadians. It is a right of great
antiquity and enjoys widespread recognition internationally. The Courts recognized
Canadians’ freedom of religion even before the Charter as an “original freedom”. In
Saumur v. City of Quebec, Justice Rand said:
From 1760, therefore, to the present moment religious freedom has, in our
legal system, been recognized as a principle fundamental character; and
although we have nothing in the nature of an established church, that the
untrammelled affirmations of religious belief and its propagation, personal
or institutional, remain as of the greatest constitutional significance
throughout the Dominion is unquestionable.
Saumur v. City of Quebec, [1953] 2 S.C.R. 299 at 327 (“Saumur”).
116.
Legal protection of freedom of religion can be said to date back to the original
protection offered to the Catholic minority as reflected in the Quebec Act. Lord
Dorchester was instructed by the Imperial Government in 1787 that he was to
“...permit Liberty of Conscience and the free Exercise of all such Modes of Religious
Worship, as are not prohibited by Law”. Ontario has had a Religious Freedom Act in
effect since before Confederation that espouses freedom of religion as a matter of
public policy.
53
Talman, at 365; David M. Brown, “Freedom from or Freedom for?: Religion as a
Case Study in Defining the Content of Charter Rights” (2000), 33 U.B.C.L.
Reverend 551-615 (“Brown”); Religious Freedom Act, R.S.O. 1990, C.R-22,
originally enacted as 14 & 15 Vict. C.175.
117.
Canada has a special history of freedom of religion because of the unique place of
Quebec as a Catholic province within a Protestant Empire. However, the degree of
religious toleration has always been imperfect. There have been attempts by both
individuals and the state to impose their discriminatory religious views on others who
did not share their religious beliefs, even attempts to privilege one denomination over
others.
See e.g. Talman at 361.
118.
Immediately following the Second World War, religious discrimination was
recognized by the Courts as offensive to Canadian public policy. In thus advancing
the common law, the Court quoted with approval the observation of Justice Cardozo
that
“..the law, like the traveler, must be ready for the morrow. It must have a principle
of growth.”
Re Drummond Wren [1945], O.R. 778 (H.C.J.) at 780.
119.
Notwithstanding this stated public policy, a particularly dark episode in our
history of religious intolerance unfolded in the 1940’s and 1950’s: the persecution of
the Jehovah’s Witnesses. Their scandalous pamphlets angered the Catholic Church
and provoked legal retribution by the federal government and the Duplessis regime in
Quebec. However, the shameful intolerance of society and the state in Canada in this
period is in marked contrast to the distinguished development of the law of religious
54
freedom in our Supreme Court in Boucher v. The Queen, Saumur v. City of Quebec,
Chaput v. Romain et al. and Roncarelli v. Duplessis.
Boucher v. The Queen, [1951] S.C.R. 265; Saumur v. City of Quebec, [1953] 2
S.C.R. 299; Chaput v. Romain et al., [1955] S.C.R. 834 (“Chaput”); Roncarelli v.
Duplessis, [1959] 2 S.C.R.121; Brown, at 555-560.
120.
These cases established definitively that, even in the pre-Charter era, the state
was not allowed to impose any particular religious doctrine on an unwilling minority.
Justice Taschereau said:
In our country there is no state religion. All religions are on an equal
footing, and Catholics as well as Protestants, Jews, and other adherents to
various religious denominations, enjoy the most complete liberty of
thought. The conscience of each is a personal matter and the concern of
nobody else. It would be distressing to think that a majority might impose
its religious views upon a minority…
Chaput v. Romain et al., [1955] S.C.R. 834, quoted with approval in R. v.
Big M Drug Mart Ltd., [1985] S.C.R. 295 at 325.
121.
Freedom of religion was expressly recognized in the Canadian Bill of Rights.
However, the Supreme Court found that the Bill only recognized freedom of religion
to the extent it existed when enacted, and that it did not exempt religious dissidents
from laws of general application in Robertson and Rossetani v. The Queen.
Canadian Bill of Rights S.C., 1960, c.44 s.1(c); Robertson and Rossetani v. The
Queen, [1963] S.C.R. 651(“Robertson”).
122.
In 1982, Canada’s laws became subject to the Charter. Freedom of religion was
enshrined in Canada’s constitution by section 2(a) of the Charter, without
entrenching the supremacy of any particular religious dogma. Chief Justice Dickson
55
described freedom of religion in this way in Big M, the case which rejected the
Robertson doctrine in the Charter era:
Freedom must surely be founded in respect for the inherent dignity and the
inviolable rights of the human person. The essence of the concept of
freedom of religion is the right to entertain such religious beliefs as a
person chooses, the right to declare religious beliefs openly and without
fear of hindrance or reprisal, and the right to manifest religious belief by
worship and practice or by teaching and dissemination. But the concept
means more than that.
R. v. Big M Drug Mart Ltd., [1985] S.C.R. 295 at 336.
123.
The Charter’s underlying theory was of liberty, freedom of choice and respect for
the dignity of all human beings. As Madam Justice Wilson said in Morgentaler:
The idea of human dignity finds expression in almost every right and
freedom guaranteed in the Charter. Individuals are afforded the right to
choose their own religion and their own philosophy of life, the right to
choose with whom they will associate and how they will express
themselves, the right to choose where they will live and what occupation
they will pursue. These are all examples of the basic theory underlying
the Charter, namely that the state will respect choices made by individuals
and, to the greatest extent possible, will avoid subordinating these choices
to any one conception of the good life.
Thus, an aspect of the respect for human dignity on which the Charter is
founded is the right to make fundamental personal decisions without
interference from the state. This right is a critical component of the right
to liberty. Liberty, as was noted in Singh, is a phrase capable of a broad
range of meaning. In my view, this right, properly construed, grants the
individual a degree of autonomy in making decisions of fundamental
personal importance.
R. v. Morgentaler, [1988] 1 S.C.R. 30 at 169 at 166.
124.
There can be no doubt that marriage is a ceremony and a status with deep
religious significance to many Canadians. It is a ceremony of such religious
56
significance that it is the only Canadian religious ceremony that also confers legal
status.
125.
The English common law based its understanding of marriage on the Christian
concept of marriage as propounded by the Established Church, that is the lawful
union of one man and one woman to the exclusion of all others for life. The historical
record makes clear that Ontario restricted recognition of religious marriages prior to
Confederation, and accorded special status first to Anglican marriages alone, then to
other Protestant marriages, then to Christian marriages, and then to all religious
marriages. It was only in 1950 that heterosexuals were free to marry outside of a
religious ceremony.
126.
The current alleged prohibition is the last vestige of the religious discrimination
that has deep roots in the history of legal marriage in Ontario. The evidence makes
clear that not only the Applicant but other Churches and Synagogues would offer
marriage in this province but for the perceived legal impediment asserted by the
federal and provincial governments.
Hawkes 2, at 11, para. 2; Hawkes 1, 45-49, paras. 50-60; Morrison-Reed,
at 104-106, paras. 5, 6, 9, 10; Stevens 1, at 131, para.18; see generally
Hyde v. Hyde & Woodmansee (1866), L.R. 1 P&D 130 and Re Hassan
and Hassan (1976), 12 O.R. (2d) 432 (H.C.J.).
127.
Since the Middle Ages at least, traditional Christianity has condemned
homosexual relationships as sinful, a view that until the late 1960’s was also given
the sanction of the criminal law in Canada. The legal residue of Christianity’s
57
hostility to homosexual acts reflected in the former criminal law continues to manifest
itself in the current alleged bar to legal recognition of same sex marriage.
128.
The evidence makes clear that the alleged restriction on same sex marriage
infringes the religious beliefs of the applicant in a fundamental manner. MCCT has
propounded as a core teaching that same sex relationships and Christianity can be
reconciled, and has provided a safe harbour to those fleeing denominations with more
negative dogmas. In the case of marriage, that escape is incomplete, for the state
purports to extend the fiat of those traditional churches into MCCT’s sanctuary by
refusal to recognize marriages that conform to the doctrine of MCCT, while
honouring the marriage doctrine of those traditional churches through state
recognition. This relegates the same sex marriages at MCCT to the same status as the
“infidel” marriages described by the House of Lords in Hyde, or to the second class
status to which Jewish and Catholic weddings were relegated in pre-Confederation
Ontario.
129.
For historical reasons and owing to our commitment to religious freedom, the
state in our system largely leaves the matter of who may marry and what constitutes a
valid marriage to the practices of the religious body performing the marriage. Legal
recognition of a church’s marriage ritual thus provides endorsement of the state to the
legitimate status of that church legally and socially. The denial of legal recognition
sends a message that MCCT is not a “real” church, that it has beliefs that are
“illegitimate”, that MCCT is engaging in socially unacceptable activities and which
58
generally marginalizes and devalues the church compared to more traditional
churches.
130.
The state is coercing MCCT into denying a religious ceremony to its members
and enforcing a restriction that is repugnant to its theology in order to conform to the
state’s view of acceptable religious belief. As Chief Justice Dickson said in the
context of the ban on Sunday shopping in Big M, the theological content of this
alleged legal restriction:
“ …remains as a subtle and constant reminder to religious minorities within the
country of their differences with, and alienation from, the dominant religious culture.”
R. v. Big M Drug Mart Ltd., [1985] S.C.R. 295 at 337.
131.
Moreover, the infringement is more sweeping than just its impact on MCCT, for it
is apparent that there is at least one other religious denomination whose official
doctrine supports recognition of all same sex marriages, namely the Canadian
Unitarian Council. Further, there are other faiths such as the Quakers and the Reform
Jews who would permit individual rabbis or congregations to offer same sex
marriages in the absence of legal impediment. The current situation in the United
Church is somewhat more ambiguous. Even in denominations where the majority or
prevailing view appears to be hostile to same sex marriage, such as Orthodox
Judaism, Islam, Anglicanism and Roman Catholicism, the evidence reveals that there
are those within those faiths who would who would either offer same sex marriage
within their faith or recognize the validity of a same sex marriage offered by another
faith.
59
Morrison-Reed, at 104-105, paras. 3-6; Stevens 1, at 131, para. 18; Gillies
at 148-150, paras. 6-9; Affidavit of Lynda Clarke, sworn May 29, 2001,
Reply Record of the Applicant MCCT, Tab 1, at 3 paras. 7-9; Hunt 2, at
84-86, paras. 21-26; Greenberg; Holloway, at 170-171, 173 paras. 12, 26.
132.
There can be no doubt that there are many evangelical Protestants, Muslims,
Orthodox Jews, Catholics and others for whom the concept of same sex marriage,
particularly religious same sex marriage is anathema.
See generally Cere, Novak.
133.
By its support for an exclusion of same sex marriage, the state chooses sides in
this religious debate. Moreover, it does so by coercing one group to accept the
religious practice of the other by forcing them to exclude same sex couples from
marriage. This intrusion into the religious sphere is without parallel in any other
aspect of Canadian life. It is far more intrusive and direct interference with religious
practice than the interference with commercial pursuits imposed by the Sabbath
enforcement legislation in issue in Big M. Whether or not the views of MCCT
represent the majority view in Canadian society is beside the point. As Chief Justice
Dickson said:
What may appear good and true to a majoritarian religious group, or the
state acting at their behest, may not, for religious reasons, be imposed
upon citizens who take a contrary view. The Charter safeguards religious
minorities from the threat of “the tyranny of the majority”.
R. v. Big M Drug Mart Ltd., [1985] S.C.R. 295 at 337.
134.
It is true that the Applicant is free to marry persons of the opposite sex. However,
that is not the limit that is in issue in this case. The fact that all religions are treated
60
identically does not insulate this restriction from Charter scrutiny. As Chief Justice
Justice Dickson said in Big M,
“The equality necessary to support religious freedom does not require identical
treatment of all religions. In fact, the interests of true equality may well require
differentiation in treatment.”
Allowing gays and lesbians to marry at MCCT provided that they marry someone of the
opposite sex is no different than permitting Jews to marry provided that they are baptized
or allowing Catholics to marry so long as they renounce the authority of the Pope.
R. v. Big M Drug Mart Ltd., [1985] S.C.R. 295 at 347; Adler v. Ontario, [1996] 3
S.C.R. 609 at 657.
135.
Like all other freedoms, freedom of religion is not absolute. As Chief Justice
Dickson observed in Big M, it is subject to
“such limitations as are necessary to protect public safety, order, health, or
morals or the fundamental rights and freedoms of others.”
Examples of reasons to limit freedom of religion are the desire to create a common day of
rest, the need to provide life-saving medical treatment to children or the need to ensure
minimal educational standards in schooling. As the Supreme Court articulated in
Edwards Books, the Court must ascertain first whether there is a burden imposed by the
law, and second whether the burden is trivial.
61
R. v. Big M Drug Mart Ltd., [1985] S.C.R. 295 at 337; See e.g. R. v. Tucker
(1999), F.T.R. 263; Jones v. The Queen [1986] 2 S.C.R. 284 at 298; Brown, at
565; Canada (Minister of Justice) v. Borowski, [1981] 2 S.C.R. 575; R. v.
Edwards Books and Art Ltd., [1986] 2 S.C.R. 713 (“Edwards Books”).
136.
Given the centrality to the theology of MCCT that homosexuality is not contrary
to Christianity, and given the historic importance of marriage to all Christians, it
cannot be said that the effects of this alleged restriction on MCCT and its congregants
are “trivial or insubstantial”.
Trinity Western University v. British Columbia College of Teachers, [2001]
S.C.C. 31 QL (“Trinity Western”); R. B. v. Children’s Aid Society of Metropolitan
Toronto, [1995] 1 S.C.R. 315; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R.
713.
137.
Limits for the purposes of “protecting the fundamental rights and freedoms of
others” does not meant that the state may compel observance of a particular religious
doctrine on a minority because of the importance of those religious beliefs to the
majority. On the contrary, as Chief Justice Dickson said in Big M:
In my view, the guarantee of freedom of conscience and religion prevents
the government from compelling individuals to perform or abstain from
performing otherwise harmless acts because of the religious significance
of those acts to others. The element of religious compulsion is perhaps
somewhat more difficult to perceive (especially for those whose beliefs
are being enforced) when, as here, it is non-action rather than action that is
being decreed, but in my view compulsion is nevertheless what it amounts
to.
R. v. Big M Drug Mart Ltd., [1985] S.C.R. 295 at 350.
138.
In determining whether there is a burden on a religious minority, the assessment
must be done from the standpoint of members of those religious minorities.
62
Zylberberg v. Sudbury Board of Education (1988), 65 O.R. (2d) 641 (C.A.) at
654; Canadian Civil Liberties Association v. Ontario (Minister of Education)
(1990), 71 O.R. (2d) 341 (C.A.).
139.
Even if there is a burden imposed that is not trivial, the Court may still endorse
the limitation as constitutional if it injures others. For example, in Young v. Young the
Court found that conduct that poses risk of harm to a child would not be protected.
Young v. Young, [1994] 4 S.C.R. 3.
140.
One of the reasons for limiting freedom of religion is in order not to interfere with
the freedom of religion of others. It is clear that the position taken by the governments
in this case (apart from the City of Toronto) infringes the freedom of religion of the
Applicant and others. Despite the allegations made in the record, it cannot be fairly
said that the absence of such a prohibition would unduly interfere with the religious
beliefs of others.
141.
It must be recognized that the religious doctrine of some faiths is hostile to same
sex marriage. This is generally based on the view that homosexuality is sinful, and in
at least some cases on the view that only sexual activity within marriage, or perhaps
only procreative sex within marriage is moral. Those religious views should be
respected, and indeed enjoy a measure of constitutional protection in the private
sphere of activity. However, respect for religious faith should not be confused with a
right to state enforcement of religious beliefs.
Trinity Western University v. British Columbia College of Teachers, [2001]
S.C.C. 31 (QL) at para. 36; R. v. Big M Drug Mart Ltd., [1985] S.C.R. 295 at 336-
63
337, 346-347, 350; see generally, Chamberlain v. Surrey School District No. 36
(2000), 80 B.C.L.R. (3d) 181.
142.
Persons holding conservative religious beliefs would be offended by same sex
marriage. However, in truth it is the homosexual act itself that violates their
teachings. Moreover, for faiths such as the Catholic faith, unmarried heterosexual
unions are also sinful and unworthy of legal protection.
Interfaith Answers, Tab 1, Q. 3(a), 8(a); Tab 4, Q. 8(a); Tab 5, Q. 8(a);
Tab 3, Q. 8(a); Hunt, at 177-178.
143.
Canadian law has never fully conformed to traditional Christian dogma in the
definition of marriage, nor to the definition in Hyde, since divorce has been legally
permitted since 1867. Unmarried relationships, both heterosexual and homosexual,
now enjoy considerable legal recognition under Canadian law.
144.
Those who hold conservative religious beliefs must already accommodate
themselves to a Canadian society that does not enforce all of their religious beliefs.
Muslims must live with the sale of alcohol, and observant Jews and Hindus with the
sale of pork and beef in our grocery stores. Catholics must accept the fact that divorce
is not prohibited, as they have since 1867, and fundamentalist Protestants must accept
that unmarried heterosexual relationships are recognized in law. Even those who
condemn homosexual acts as sinful recognize the right of the state to refrain from
criminalizing such behaviour.
Hawkes 2, at 23, para. 17; Greenberg Affidavit, at 15-16, paras. 16-17; Interfaith
Answers, Tab 1, Q. 2(a), Tab 3, Q. 2(a), Tab 4, Q. 2(a).
64
145.
The Supreme Court has recognized in Trinity Western that those who hold the
belief that homosexuality is sinful are entitled to those beliefs. However, they must
accept constraints on those beliefs when they enter the public realm. Our society and
our law recognizes as a matter of public policy and of our fundamental constitutional
law that gays and lesbians, and their relationships, are entitled to equality. However
offensive that principle may be to some persons of sincere religious faith, that is the
law.
Trinity Western University v. British Columbia College of Teachers,
[2001] S.C.C. 31 (QL) at para. 31.
146.
Given the many changes that have occurred in our law that have recognized the
rights of gays and lesbians, including the recognition of gay and lesbian relationships,
it is difficult to see how this measure would be any more offensive to the religious
beliefs of those who view homosexuality as sinful than any other measure beginning
with decriminalization.
Interfaith Answers, Tab 1, Q. 3(a), 6(a), 7(a), 8(a), 9(a), 10(a); Tab 4, Q.
3(a), 4(a), 7(a), 8(a), 9(a), 10(a); Tab 5, Q. 7(a), 8(a), 9(a), 10(a).
147.
MCCT does not seek to compel anyone to marry same sex couples. MCCT seeks
recognition of the marriages that it has performed in conformity with its own
religious teachings. Rabbi Novak, Imam Ali , Dr. Gay and others are free to refuse to
recognize them as “real” marriages because of their religious beliefs. However, the
government of Canada may not refuse to recognize them.
65
VI
EQUALITY
148.
In addition to the violation of section 2(a), the conduct of the governments clearly
violates section 15(1). The test for a violation of section 15(1) was recently set out by
the Supreme Court of Canada in Law v. Canada.
Law v. Canada (Minister of Employment and Immigration), [1999] 1
S.C.R. 497 (“Law”).
149.
The proper approach to analyzing a claim under section 15(1) of the Charter
requires a court to make three broad inquiries:
(a) Whether the impugned law draws a formal distinction between the claimant and
others on the basis of one or more personal characteristics, or fail to take into account
the claimant’s already disadvantaged position within Canadian society resulting in
substantively differential treatment between the claimant and others on the basis of
one or more personal characteristics;
(b) Whether the claimant was subject to differential treatment on the basis of one or
more of the enumerated and analogous grounds; and,
(c) Whether the differential treatment discriminates in the substantive sense, bringing
into play the purpose of s. 15(1).
Law v. Canada (Minister of Employment and Immigration), [1999] 1
S.C.R. 497 at 524.
150.
The Supreme Court has held that the purpose of s. 15(1) of the Charter is to :
“prevent the violation of essential human dignity and freedom through the
imposition of disadvantage, stereotyping, or political or social prejudice, and to
66
promote a society in which all persons enjoy equal recognition at law as human
beings or as members of Canadian society, equally deserving of concern, respect
and consideration”.
Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497
at 518.
151.
A court is required to engage in a comparative analysis taking into account the
surrounding circumstances of the claim and the claimant. The appropriate comparator
must be evaluated from the perspective of the claimant. In Egan, Justice L’HeureuxDubé stated that the analysis must be both subjective and objective.
Egan v. Canada, [1995] 2 S.C.R. 513 at 552; Law v. Canada (Minister of
Employment and Immigration), [1999] 1 S.C.R. 497 at 532 .
152.
The contextual factors to be considered include: whether there is a pre-existing
disadvantage, the relationship between the ground upon which the claim is based and
the nature of the differential treatment, the ameliorative purpose or effects of the
impugned legislation, and the nature of the interest affected. With regard to the last
factor, Justice L’Heureux-Dubé stated in Egan that:
“it is relevant to consider whether the distinction restricts access to a fundamental
social institution, or affects “a basic aspect of full membership in Canadian
society”.
Egan v. Canada, [1995] 2 S.C.R. 513 at 556; Law v. Canada (Minister of
Employment and Immigration), [1999] 1 S.C.R. 497 at 540.
153.
For the reasons set out in the discussion of freedom of religion it is clear that the
alleged prohibition on same sex marriages is an infringement of the Applicant’s right
to be free from religious discrimination under section 15(1). Canada’s marriage law
has its roots in Christianity. The alleged prohibition is a clear remnant of this
discriminatory origin of marriage as defined by the Anglican tradition that once was
67
the only legally recognized religious marriage in Ontario. The evidence reveals that
even some Anglicans no longer support this restriction, but whether or not the
definition is currently favoured by a majority within the Anglican Church or
elsewhere is irrelevant. It is not a view held by many sincere Canadians of religious
faith and discriminates against them on religious grounds.
154.
The alleged restriction, based as it is on historic Christian dogma, also reflects the
hostility to homosexuality that was the prevailing view in the Christian faith since the
Middle Ages. While many Christians now take a different view of homosexuality,
many maintain the historic dogma, a dogma shared with some other faiths. The
sincerity of their religious views do not change the fact that the exclusion operates to
discriminate against same sex couples, who are denied the fundamental right to
choose to marry.
155.
It has been recognized by the Supreme Court of Canada in Egan and in M. v. H.
that discrimination against same sex couples infringes section 15 (1) of the Charter.
While those cases did not concern themselves with marriage, it is apparent that this
exclusion does discriminate against same sex couples. Apart from the immediate
acquisition of benefits that accrue over time under Bill C-23, there are important
rights and obligations that are only available to married persons under the laws of
Ontario. Moreover, for gay and lesbian Christians, anything other than marriage does
not allow them the dignity of their religious beliefs about their sexuality.
See generally Egan v. Canada, [1995] 2 S.C.R. 513; M. v. H., [1999] 2 S.C.R. 3.
68
156.
The pervasive and invidious nature of discrimination against gays and lesbians
has been the subject of repeated comment in the Supreme Court. In Vriend, Justice
Cory characterized such discrimination as “cruel and unfortunate”.
Vriend v. Alberta, [1998] 1 S.C.R. 493 at 543.
157.
Layland, a case which pre-dates M. v. H., erroneously relied on Hyde and should
not be followed on that ground alone. Moreover, the Layland court held that as
homosexuals were free to marry persons of the opposite sex, the impediment resulted
from their sexual preference and not any legal requirement. This type of analysis was
subsequently rejected by the Supreme Court in Vriend, where the majority noted that
the allegation that the distinction between heterosexuals and homosexuals was created
by nature and not by the law was the same analysis rejected by the Court in respect of
pregnant women in Brooks v. Canada Safeway and in respect of the hearing impaired
in Eldridge. The Court in EGALE v. Canada also declined to follow Layland on this
point, and found a violation of section 15 (1).
Vriend v. Alberta, [1998] 1 S.C.R. 493 at 539 - 544; Brooks v. Canada Safeway
Ltd., [1989] 1 S.C.R. 1219; Eldridge v. B.C. (A.G.), [1997] 3 S.C.R. 624
(“Eldridge”); EGALE Canada Inc. et. al. v. Attorney General of Canada et. al.
(2001), B.C.S.C. 1365.
158.
The alleged prohibition sends an implicit message that the state considers gay and
lesbian relationships to be less worthy than heterosexual relationships by withholding
recognition to the religious marriages of the Applicant while extending recognition to
all manner of religions that embrace a contrary dogma regarding homosexuality. This
is made manifest in the material filed by the Coalition and the Association, which
69
allege that heterosexual marriage will be injured in that it would be devalued by
extending the availability of marriage to same sex relationships. These materials
make it clear that, for conservative people of faith, marriage is a valuable institution
that is superior to other situations, and heterosexual unions are inherently superior to
homosexual unions. This symbolic message of heterosexual and religious superiority,
endorsed by the state, is what is really threatened by the removal of the alleged
impediment to same sex marriage.
Interfaith Answers, Tab 1, Q. 8(a); Tab 3, Q. 1(b), 8(a); Tab 4, Q. 7(a),
8(a).
159.
The alleged prohibition also violates section 15(1) and section 28 on the grounds
of sex. As has been held in Baehr v. Miike and Baker v. Vermont, the law draws a
distinction on the basis of the gender of the partner, much as anti-miscegenation laws
drew distinctions based on the race of the partner. This interpretation is also
consistent with international law that treats sexual orientation discrimination as sex
discrimination.
Baehr v. Miike, 1996 WL 694235 (Hawaii Cir. Ct., Dec. 3, 1996); Baker v.
Vermont, 744 A.2d 864 (“Vermont”); Toonen v. Australia Communication No.
488/1992, U.N. Doc. CCPR/C/50/D/488/1992 (1994) (Human Rights
Committee); Baker v. Canada, [1999] 2 S.C.R. 817 at 862.
160.
As Justice Greer noted in her dissent in Layland, it is:
“a basic theory in our society that the state will respect choices made by
individuals and the state will avoid subordinating these choices to any one
conception.”
Layland v. Ontario (Minister of Consumer and Commercial Relations) (1993), 14
O.R. (3d) 658 (Div. Ct.) at 672.
70
161.
As this involves a common law restriction only, at best, there can be no need for
legislative deference for it is judges who have fashioned this rule and can modify it.
Although this change is significant and important, both for its substantive and
symbolic content, given the context of increasing recognition of same sex
relationships through legislation and judicial rulings in this and other democracies, it
must be seen as an incremental rather than a radical change.
R. v. Salituro, [1991] 3 S.C.R. 654 at 664-65.
162.
While the opponents of the recognition of same sex marriage mount the usual in
terrorem arguments about unforeseen consequences in urging caution, these can be
disregarded. Adverse consequences have been predicted and failed to materialize over
every important advance in gay and lesbian equality, from adoption to ending the ban
on gays and lesbians serving openly in the military. There are predictable
consequences, however, namely Canada’s advancement toward the “magnificent goal
of equal dignity for all”, and “a sense of dignity and worthiness for every Canadian
and the greatest possible pride and appreciation in being part of a great nation”.
Vriend v. Alberta, [1998] 1 S.C.R. 493 at 535 per Cory J., Stevens 2, at 134, para.
16.
VII
NO SECTION 1 JUSTIFICATION
163.
If the existing restriction is imposed by the common law, given that it infringes
Charter rights, the correct approach is to amend it without conducting a section 1
analysis.
71
R. v. Salituro, [1991] 3 S.C.R. 654 at 675; R. v. Swain, [1991] 1 S.C.R. 933 at
978.
164.
In the alternative, it is apparent from the forgoing analysis that the objective or
effect of the current alleged limitation is to maintain the last vestige of an historic
Christian definition of marriage, a definition that is no longer shared even by all
Christians. This is the enforcement of religious dogma by the state in violation of
section 2(a), and no section 1 analysis is required. The enforcement of religious
dogma by the state can never be justified under section 1. The Supreme Court of
Canada in Quebec v. Quebec Association of Protestant School Boards said:
“An Act of Parliament or of legislature which, for example, purported to
impose the beliefs of a State religion would be in direct conflict with s.
2(a) of the Charter, which guaranteed freedom of conscience and religion,
and would have to be ruled of no force or effect without the necessity of
even considering whether such legislation could be legitimized by s.1”
Quebec (Attorney General) v. Quebec Assn. of Protestant School Boards,
[1984] 2 S.C.R. 66.
165.
In the further alternative, if a section 1 analysis is required, the first step of the
analysis is to examine the objective that the “limit on a Charter right or freedom are
designed to serve” (emphasis added) per Dickson C.J. in Oakes, quoted with approval
by Iacobucci J. in Vriend. The Government must demonstrate, not that the objective
of marriage is pressing and substantial, but that the objective of the infringement of
Charter rights or freedoms by withholding state recognition from the religious same
sex marriages of MCCT is pressing and substantial. The Court erred in EGALE v.
Canada by focusing on the undoubted importance of heterosexual marriage, rather
72
than ascertaining the less obvious importance of excluding same sex couples from
marriage.
Vriend v. Alberta, [1998] 1 S.C.R. 493 at 555; EGALE Canada Inc. et. al. v.
Attorney General of Canada et. al. (2001), B.C.S.C. 1365 at 82.
166.
If the purpose of the limitation is to exclude same sex couples, the purpose is
discriminatory and cannot be justified under section 1. If the purpose of state
recognition of religious marriage is to respect both the traditional role of churches in
performing marriages while respecting religious diversity in Canadian society,
imposing this limitation is the antithesis of this goal. It does not respect religious
diversity but constitutes state enforcement of historic Christian dogma against those
with differing views to the discredit of all people of faith. If the purpose of state
recognition of marriage is to foster loving, committed and mutually supportive
relationships, that purpose is undermined by limiting the laws recognition to
heterosexual relationships only. If the purpose of marriage is to benefit children, this
limit both deprives the children of gay and lesbian parents of the benefits of legal
marriage and denies the gay and lesbian children of all parents of the hope and dream
of marriage.
per Greer J., dissenting in Layland v. Ontario (Minister of Consumer and
Commercial Relations) (1993), 14 O.R. (3d) 658 (Div. Ct.) at 677.
167.
In EGALE, Justice Pitfield articulated the section 1 justification as procreation. In
doing so, he quotes from the section 15 analysis of Justice LaForest in Egan, an
analysis supported by only 4 of 9 Justices. Moreover, this biological, essentialist or
procreation justification has subsequently been expressly rejected by an
73
overwhelming majority of the Supreme Court in M. v. H. Justice Iacobucci noted
that, given that some heterosexual couples do not procreate and some homosexual
couples do, the exclusion is “simultaneously underinclusive and overinclusive” and
lacking any rational connection with the alleged objective. In fact, Justice Pitfield’s
analysis in this regard is virtually identical to that of Justice Gonthier in M. v. H.,
where that learned Justice was a minority of one. Justice Pitfield failed to articulate
how a section 1 justification that was expressly rejected by an overwhelming majority
of the Supreme Court in the context of common law relationships was nonetheless
justified in the context of marriage. Therefore, the EGALE case must be regarded as
wrongly decided on this point.
EGALE Canada Inc. et. al. v. Attorney General of Canada et. al. (2001), B.C.S.C.
1365 at 71-85, M. v. H., [1999] 2 S.C.R. 3.
168.
There is no clash of rights here such as existed in Trinity Western that would
require a section 1 balancing of interests. The extension of recognition to same sex
relationships will not imperil the recognition of opposite sex marriages of any other
faith. As Justice Greer said in dissent in Layland:
“…heterosexuals will not be circumscribed or in any way limited by extending to
gays and lesbians the right to marry.”
Layland v. Ontario (Minister of Consumer and Commercial Relations) (1993), 14
O.R. (3d) 658 (Div. Ct.) at 677.
169.
There has been an attempt in this case to create the illusion of conflict between
the equality rights of gays and lesbians and the religious freedom of those who view
same sex relationships as sinful. This is a false choice. As Justice L’Heureux-Dubé
74
(dissenting) said in Mossop, which was quoted with approval by the majority in
Miron:
“It is possible to be pro-family without rejecting less traditional family forms. It is
not anti-family to support protection for non-traditional families. The traditional
family is not the only family form, and non-traditional family forms may equally
advance true family values”.
And as Justice Greer (dissenting) said in Layland, quoting with approval from the
Leshner decision,
”…marriage and the “traditional family” are sustaining institutions of society, but
that they should not be used as a means to impose discrimination and
disadvantage on others. Support for the traditional family or for the institution of
marriage should not entail the exclusion and disadvantaging of other family
forms.”
Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554 at 634; Layland v.
Ontario (Minister of Consumer and Commercial Relations) (1993), 14 O.R. (3d)
658 (Div. Ct.) at 675.
170.
Moreover, the same arguments advanced now about same sex marriage trenching
on religious freedom have been unsuccessfully advanced in respect of other measures
aimed at improving gay and lesbian equality in other cases, notably in the case of
human rights protection in Vriend. The Supreme Court in Vriend has ruled that the
religious beliefs of some, even the majority, may not be relied upon by government to
justify infringing the equality rights of gays and lesbians.
See generally Vriend v. Alberta, [1998] 1 S.C.R. 493; R. v. Big M Drug Mart Ltd.,
[1985] S.C.R. 295 at 353.
VIII
REGISTRAR GENERAL’S LACK OF AUTHORITY TO REJECT
REGISTRATION
75
171.
The Registrar General of Ontario has no jurisdiction to pass judgment on the
validity of marriages, a matter exclusively within federal jurisdiction. He lacked the
jurisdiction to refuse to register the documents tendered by MCCT in the absence of
an express statutory prohibition or a Court Order. Mandamus lies against the
Registrar where he has exceeded his constitutional authority by acting as a judicial
officer in making decisions about capacity, or where Ontario has purported to
regulate matters of capacity.
Re Schepull and Bekeschus v. Provincial Secretary, [1954] O.R. 67, [1954] 2
D.L.R. 5 (H.C.).
PART IV - REMEDY
172.
Given that the alleged restriction is to be found in the common law, there is no
need to strike down any statute with a suspension. The Court need only declare that
there is no valid continuing prohibition on same sex marriages. To the extent that
section 1.1 of Bill C-23 purports to recognize or create such a prohibition, it should be
declared of no force or effect under section 52 of the Charter.
173.
There is no need to suspend the remedy for the Court to permit the legislature to
consider “alternate” schemes. There is no sacrament of registered domestic
partnership. For Christians, “common law status” is simply “living in sin”. Anything
short of legal recognition of the same sex marriages of the Applicant will place its
religious marriages in the same disadvantaged and demeaned position as Catholic and
Jewish marriages in the Protestant hegemony of pre-Confederation Ontario.
76
174.
The deferential incremental approach, such as was advocated by Justice Sopinka
in Egan, is not the proper approach to an infringement of Charter rights. As Justice
Iaccobucci said in Vriend,
“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”.
Vriend v. Alberta, [1998] 1 S.C.R. 493 at 559.
175.
It is also reasonable to conclude that, faced with a choice of refusing recognition
to all marriages and extending recognition to same sex marriages, the legislature
would choose the latter course.
Vriend v. Alberta, [1998] 1 S.C.R. 493 at 569-575; Haig v. Canada (1992), 9
O.R. (3d) 495 (C.A.) at 508.
176.
In addition, the Applicant seeks an individual remedy. It seeks a declaration that
the marriages of Kevin Bourassa and Joe Varnell and of Elaine Vautour and Anne
Vautour are valid legal marriages.
177.
MCCT seeks an order in the nature of mandamus compelling the Registrar
General to accept registration of the documents evidencing these two marriages.
178.
In its capacity of intervener in the Halpern application, MCCT supports the relief
requested by the Halpern Applicants for the reasons set out in the Halpern
Applicants’ factum, this factum and the factum of the Interverner EGALE. In
particular, MCCT notes that it will not be able to meet the needs of all of its members
77
for marriage through the use of banns alone because Ontario law currently prohibits
the availability of banns where one of the persons has been previously married.
Marriage Act, R.S.O. 1990, c. M.3, s.18.
ALL OF WHICH IS RESPECTFULLY SUBMITTED
Submitted this 15th day of October, 2001.
___________________________________
R. Douglas Elliott (LSUC #23685L1A)
___________________________________
Patricia A. LeFebour (LSUC #35964D)
___________________________________
R. Trent Morris (LSUC #35597N)
ELLIOTT & KIM LLP
Barristers and Solicitors
Suite 304
150 York Street
Toronto, Ontario
M5H 3S5
Tel: (416) 362-1989
Fax: (416) 362-6204
Solicitors for the Metropolitan Community
Church of Toronto
78
TO:
The Attorney General of Canada
Department of Justice
Counsel, Public Law Section
3400 Exchange Tower
First Canadian Place
130 King Street West
Toronto, Ontartio M5X 1K6
Roslyn Levine, Q.C.
Gail Sinclair
Tel: (416) 954-8109
Fax: (416) 973-5004
AND TO:
The Attorney General of Ontario
Constitutional Law Branch
7th Floor
720 Bay Street
Toronto, Ontario M5G 2K1
Robert Charney
Tel: (416) 326-4460
Fax: (416) 326-4015
AND TO:
EPSTEIN, COLE
Barristers and Solicitors
The Simpson Tower
32nd Floor
401 Bay Street
Toronto, Ontario
M5H 2Y4
Martha A. McCarthy
Joanna L. Radbord
Tel: (416) 862-9888 ext. 241
Fax: (416) 862-2142
Solicitors for the Applicants, Halpern et al.
79
AND TO:
City of Toronto Legal Department
13th Floor, West Tower, City Hall
100 Queen Street West
Toronto, Ontario
M5H 2N2
Leslie Mendelson
Roberto E. Zuech
Tel : (416) 392-7246/ (416) 392-7244
Fax : (416) 392-1199
Solicitors for Novina Wong,
Clerk of the City of Toronto
AND TO:
STIKEMAN, ELLIOTT
Barristers & Solicitors
5300 Commerce Court West
199 Bay Street
Toronto, Ontario
M5L 1B9
David M. Brown
Tel: (416) 869-5602
Catherine C. Phillips Tel: (416) 869-5540
Fax: (416) 947-0866
Solicitors for the Association for Marriage and the Family in Ontario
AND TO:
LERNER & ASSOCIATES LLP
Barristers & Solicitors
130 Adelaide St. W.
Suite 2400, Box 95
Toronto, Ontario
M5H 3P5
Peter R. Jervis
Jasmine T. Akbarali
Tel: (416) 867-3076
Fax: (416) 867-9192
Solicitors for the Interfaith Coalition on Marriage and Family
80
AND TO:
SACK GOLDBLATT MITCHELL
20 Dundas St. W.
Suite 1130
Toronto, Ontario
M5G 2G8
Cynthia Peterson
Vanessa Payne
Tel (416) 979-6440
Fax (416) 591-7333
Solicitors for EGALE Canada Inc.
81
SCHEDULE A
Adler v. Ontario, [1996] 3 S.C.R. 609
Baehr v. Miike, 1996 WL 694235 (Hawaii Cir. Ct., Dec. 3, 1996)
Baker v. Canada, [1999] 2 S.C.R. 817
Baker v. Vermont, 744 A.2d 864
Black v. Law Society of Alberta, [1986] 3 W.W.R. 590 (Alta. C.A.)
Board of Regents of State College v. Roth, 404 U.S. 909
Bolling v. Sharpe, 347 U.S. 497
Boucher v. The Queen, [1951] S.C.R. 265
Bowers v. Hardwick, 478 U.S. 186
Brooks v. Canada Safeway Ltd., [1989] 1 S.C.R. 1219
Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554
Canada (Minister of Justice) v. Borowski, [1981] 2 S.C.R. 575
Canadian Civil Liberties Association v. Ontario (Minister of Education) (1990), 71 O.R.
(2d) 341 (C.A.).
Chamberlain v. Surrey School District No. 36 (2000), 80 B.C.L.R. (3d) 181.
Chaput v. Romain et al., [1955] S.C.R. 834
Connolly v. Woolrich (1867), 17 R.J.R.Q. 25, 11 L.C. Jur. 1973 [aff’d] (1869), 17
R.J.R.Q. 266, 1 C.N.L.C. 151 (Que. Q.B.)
Corbett v. Corbett (Ashley), [1970] 2 All E.R. 33
EGALE Canada Inc. et. al. v. Attorney General of Canada et. al. (2001), B.C.S.C. 1365
Egan v. Canada, [1995] 2 S.C.R. 513
Eldridge v. B.C. (A.G.), [1997] 3 S.C.R. 624
Grant v. South West Trains Ltd. Case C-249/96, [1998] E.C.R. I-621
82
Haig v. Canada (1992), 9 O.R. (3d) 495 (C.A.)
Hill v. Church of Scientology, [1995] 2 S.C.R. 1130
Hyde v. Hyde & Woodmansee (1866), L.R. 1 P&D 130
Jones v. The Queen, [1986] 2 S.C.R. 284
Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497
Layland v. Ontario (Minister of Consumer and Commercial Relations) (1993), 14 O.R.
(3d) 658 (Div. Ct.)
Loving v. Virginia, 388 U.S. 1 (1967)
M. v. H., [1999] 2 S.C.R. 3
M.L. and Commission des droits de la personne et des droits de la jeunesse du Québec v.
Maison des jeunes, [1998] J.T.D.P.Q. no 31 (Human Rights Tribunal)
Miron v. Trudel, [1995] 2 S.C.R. 418
Pettkus v. Becker [1980] 2 S.C.R. 834
Quebec (Attorney General) v. Quebec Assn. of Protestant School Boards, [1984]
2 S.C.R. 66.
R. v. Big M Drug Mart Ltd., [1985] S.C.R. 295
R. v. Dickout (1893), 24 O.R. 250 (Q.B.)
R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713
R. v. Klippert, [1967] S.C.R. 822
R. v. Morgentaler, [1988] 1 S.C.R. 30
R. v. Salituro, [1991] 3 S.C.R. 654
R. v. Swain, [1991] 1 S.C.R. 933
R. v. Tucker (1999), F.T.R. 263
R. B. v. Children’s Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315
R.W.D.W.U. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573
83
Reference Re Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313
Re Drummond Wren [1945], O.R. 778 (H.C.J.)
Re Hassan and Hassan (1976), 12 O.R. (2d) 432 (H.C.J.)
Re North et al. and Matheson (1974), 52 D.L.R. (3d) 280 (Man. Co. Ct.)
Re Schepull and Bekeschus v. Provincial Secretary, [1954] O.R. 67, [1954] 2 D.L.R. 5
(H.C.).
Regina v. Nan-E-Qui-A-Ka (1889), 1 Terr. L.R. 211 (S.C.)
Robertson and Rossetani v. The Queen, [1963] S.C.R. 651
Romer v. Evans, 517 U.S. 620 (1996)
Roncarelli v. Duplessis, [1959] 2 S.C.R.121
Saumur v. City of Quebec, [1953] 2 S.C.R. 299
Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177
Stanley v. Illinois, 405 U.S. 645
The Queen v. Bear’s Shin Bone (1899), 3 C.C.C. 329 (S.C. N.W.T.)
Toonen v. Australia Communication No. 488/1992, U.N. Doc. CCPR/C/50/D/488/1992
(1994) (Human Rights Committee)
Trinity Western University v. British Columbia College of Teachers, [2001] S.C.C. 31
QL
Vancouver Rape Relief Society v. British Columbia (Human Rights Commission) (2000),
23 Admin. L.R. (3d) 91
Veysey v. Canada (Commissioner of the Correctional Services), [1990] 1 F.C. 3221
(T.D.)
Vriend v. Alberta, [1998] 1 S.C.R. 493
Vriend v. Alberta (1996), 181 A.R. 16 (C.A.)
Young v. Young, [1994] 4 S.C.R. 3
84
Zylberberg v. Sudbury Board of Education (1988), 65 O.R. (2d) 641 (C.A.)
85
SCHEDULE B
American Convention on Human Rights, O.A.S. Treaty Series No. 36, 1144 U.N.T.S. 123
entered into force July 18, 1978, Article 17.
An Act for the better preventing of clandestine marriages, 26 Geo. II 7, c.33 (“Lord
Hardwicke’s Act”).
An Act to Amend Certain Statutes Because of the Supreme Court Decision in M. v. H,
S.O. 1999, c. 6 (“Bill 5”).
An Act to amend Ontario Statutes to provide for the equal treatment of persons in spousal
relationships, 3rd sess. (1994) (“Bill 167”).
An Act to amend the laws relating to the solemnization of Matrimony in Upper Canada,
20 Victoria, c. 66 (“Ontario Marriage Act of 1857”).
An Act to confirm and make valid certain marriages now comprised within the Province
of Upper Canada, and to provide for future solemnization of marriage within the same,
33 Geo. III, c.5 (“Ontario Marriage Act of 1793”).
An Act to extend the Provisions of the Marriage Act of Upper Canada to Ministers of all
denominations of Christians, 10&11 Vic., c. 18 (“Marriage Act of 1847”).
An Act to extend the provisions of an Act passed in the second session of the First
Provincial Parliament of Upper Canada, intituled, “An Act to confirm and make valid
certain marriages now comprised within the Province of Upper Canada, and to provide
for future solemnization of marriage within the same” 38 Geo. III c.4, s. 4-5.
Canadian Bill of Rights S.C., 1960, c.44, s.1(c).
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, sections 1, 2(a), 2(d), 7, 15(1),
28, 52.
Defense of Marriage Act, United States Public Laws, 110 Stat. 2419 (104th Congr., 2nd
Sess), adding to U.S. CA title 28, c.115, a new section 1738C, and adding to U.S. CA
title 1, c1, new section 7.
Divorce Act, S.C. 1967-68, c. 24, (later R.S.C. 1970, c. D-8), s. 3.
Family Law Reform Act, S.O. 1978, c. 2.
86
International Covenant on Civil and Political Rights, G.A. Res. 2200A, 21 U.N. GAOR,
Supp. No. 16, U.N. Doc. A-6316 (1966), adopted by the General Assembly on December
16, 1966 and which entered into force on March 23, 1976 Article 23.
Law Reform (2000) Act, S.N.S. 2000, c. 29.
Local Government Act 1988, c. 9, s. 28(1)(b).
Marriage Act, 1950, S.O. 1950, c. 42, s. 25
Marriage Act, R.S.O. 1990, c. M.3, s. 5.
Marriage Regulations, R.R.O. 1990, Reg. 738, s. 2.
Modernization of Benefits and Obligations Act, S.C. 2000, c. 12 (“Bill C-23”).
Policy on Discrimination and Harassment because of Gender Identity, Ontario Human
Rights Commission (approved by the Commission March 30, 2000).
Religious Freedom Act, R.S.O. 1990, C.R-22, originally enacted as 14 & 15 Vict. C.175.
Succession Law Reform Act, R.S.O. 1990, c. S.26, s. 20 (Part II).
Universal Declaration of Human Rights, G.A. Res. 217A, 3 U.N. GAOR., Pt. I, U.N.
Doc. A-810 (1948) adopted by the General Assembly of the United Nations on December
10, 1948, Article 16.
Vital Statistics Act, R.S.O. 1990, c. V.4, s. 19(1).