The Lawyers Weekly
May 16, 2003
By Gary Oakes
Victoria
 Joe Arvay: "It's time for the government to do the right thing and follow the order of the courts." |
The British Columbia Court of Appeal has declared the common law bar to same-sex marriages unconstitutional and given the federal and provincial governments until July 12, 2004, "to review and revise legislation to bring it into accord with this decision."
The court granted a declaration "that the common law bar against same-sex marriage is of no force or effect because it violates [equality] rights and freedoms guaranteed by s. 15 of the Charter and does not constitute a reasonable and demonstrably justified limit on those rights and freedoms within the meaning of s. 1."
Justice Jo-Ann Prowse, who wrote the main reasons for decision, added that "I would also reformulate the common law definition of marriage to mean 'the lawful union of two persons to the exclusion of all others.' ...In my view, this is the only road to true equality for same-sex couples. Any other form of recognition of same-sex relationships ...falls short of true equality."
She said the court "should not be asked to grant a remedy which makes same-sex couples 'almost equal,' or to leave it to governments to choose amongst less-than-equal solutions."
In concurring reasons agreed to by Justice Richard Low, Justice Kenneth Mackenzie stressed "that the issue before us concerns civil marriage only and the conclusion does not displace the rights of religious groups to refuse to solemnize same-sex marriages that do not accord with their religious beliefs."
"Freedom of religion under the Charter requires respect for the pluralism of religious beliefs on this question."
Justice Mackenzie also pointed out that it wasn't long ago that "homosexual relations were subject to criminal sanctions and the idea of same-sex marriage was not a possibility that could be seriously considered. Since the decriminalization of homosexual relationships in Canada in 1969, there has been a steady expansion of the rights of gay, lesbian and bisexual persons reflected in human rights legislation and Charter jurisprudence. These developments have substantial public support, although the matter remains controversial.
"In my view, this evolution cannot be ignored. Civil marriage should adapt to contemporary notions of marriage as an institution in a society which recognizes the rights of homosexual persons to non-discriminatory treatment."
It is the third such decision in Canada, although the first from a provincial appellate court; similar rulings in Ontario (Halpern v. Canada (Attorney General), [2002] O.J. No. 2714, (2002) 215 D.L.R. (4th) 223) and Quebec (Hendricks c. Quebec (Procureur general), [2002] J.Q. no 3816, are under appeal).
Justice Prowse pointed out that her decision to "suspend the relief" coincides with the expiration of a 24-month suspension of remedy in Halpern, "and is necessary, in my view, to avoid confusion and uncertainty in the application of the law to same-sex marriages."
She also said that if Parliament concludes that the court's conclusion is unacceptable, "it continues to have options available to it. It could, for example, abolish marriage altogether. ...In the alternative, it is open to the government to use its override power under s. 33 of the Charter."
The matter may well end up in the Supreme Court of Canada although Joe Arvay of Victoria's Arvay Finlay, one of the counsel on the case, said there is no need to go before the nation's highest court and that the appeal court's decision should be accepted by all parties.
"It's time for the government to do the right thing and follow the order of the courts," Arvay told The Lawyers Weekly.
He said the B.C. ruling "was clear that Parliament doesn't get to use this ...period [of suspension] to debate the issue," and the ruling was also unequivocal "that a Registered Domestic Partnership is not a remedy for the discrimination. It would perpetuate it [and] provide a lesser form of equality."
The B.C. case concerned appeals from the decision of a Supreme Court judge dismissing petitions for declarations that the issuer of marriage licence's be permitted to provide them to couples of the same sex.
Justice Prowse noted that there was agreement by everyone involved in the case "that neither Parliament, nor the provincial legislature, has enacted legislation which prohibits same-sex marriages." At the same time, "I am satisfied that the trial judge was correct in finding that there was a bar to same-sex marriage at common law by virtue of the common law definition of marriage as 'the voluntary union for life of one man and one woman, to the exclusion of all others.'"
Justice Prowse agreed that the relief granted by the three provincial decisions "would constitute a profound change to the meaning of marriage, and would be viewed as such by a significant portion of the Canadian public, whether or not it supported the change..."
"While an informed member of the public would be aware of the significant changes that have taken place over the last several years in expanding the rights of obligations of same-sex couples, many members of the public have regarded those changes, in themselves, as highly controversial. On the other hand, many others have viewed them as simply a long-overdue recognition of the need to provide equality to those for whom equality has, in the past, been denied."
She also agreed with the trial judge "that the appellants have established that the common-law definition of marriage (which operates as a common-law bar to same-sex marriage) breached their right to equality under s. 15 of the Charter."
But she disagreed with his finding that the breach of their equality rights "could be justified under s. 1 of the Charter, the section that "guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."
She also agreed with the finding in Hendrick that "there is no hierarchical list of rights in the Charter, and freedom of religion and conscience must live together with s. 15 equality rights. One cannot trump the other."
"Similarly, the rights of religious groups to freely practice their religion could not oust the rights of same-sex couples seeking equality, by insisting on maintaining barriers in the way of that equality."
"While it is always possible for an individual to attempt to challenge the practices of a religious group as being contrary to Charter values, the possibility of such a challenge cannot justify the maintenance of the common law barrier to same-sex marriage."
Justice Prowse quoted from a Law Commission of Canada report on the issue in which it was stated that "adherence to the fundamental values of equality, choice and freedom of conscience and religion, requires that restrictions on same-sex marriage be removed; the status quo reinforces the stigmatization felt by same-sex couples. If governments are to continue to maintain an institution called marriage, they cannot do so in a discriminatory fashion."
Reasons in EGALE Canada Inc. v. Canada (Attorney General), [2003] B.C.J. No. 994, are available from FULL TEXT: 2303-021, 50 pp.
