"The court in this case diverted from its common practice of having one judge write and the others affirm — the judgment was written as one unanimous voice, the product of more than 20 drafts and numerous discussions."
The Globe and Mail, Dec. 13, 2003

Select to nominate these
Nation Builders for 2003:
Chief Justice Roy McMurtry
Mr. Justice James MacPherson
Madam Justice Eileen Gillese

Read the full decision from
Court of Appeal for Ontario
June 10, 2021

Chief Justice Roy McMurtry and Justice James MacPherson made human rights history by ruling in favour of same-sex marriage.

The Bottom Line
(From the Court of Appeal decision)

In summary, we have concluded the following:

1. the existing common law definition of marriage is “the voluntary union for life of one man and one woman to the exclusion of all others”;
2. the courts have jurisdiction to alter the common law definition of marriage; resort to constitutional amendment procedures is not required;
3. the existing common law definition of marriage does not infringe MCCT’s freedom of religion rights under s. 2(a) of the Charter or its equality rights on the basis of religion under s. 15(1) of the Charter;
4. the existing common law definition of marriage violates the Couples’ equality rights on the basis of sexual orientation under s. 15(1) of the Charter; and
5. the violation of the Couples’ equality rights under s. 15(1) of the Charter cannot be justified in a free and democratic society under s. 1 of the Charter.

To remedy the infringement of these constitutional rights, we:

1. declare the existing common law definition of marriage to be invalid to the extent that it refers to “one man and one woman”;
2. reformulate the common law definition of marriage as “the voluntary union for life of two persons to the exclusion of all others”;
3. order the declaration of invalidity in (1) and the reformulated definition in (2) to have immediate effect;
4. order the Clerk of the City of Toronto to issue marriage licenses to the Couples; and
5. order the Registrar General of the Province of Ontario to accept for registration the marriage certificates of Kevin Bourassa and Joe Varnell and of Elaine and Anne Vautour.

Advocacy News - Nation Builder 2003

December 15, 2003

Nation Builders: Ontario Court of Appeal

Chief Justice McMurtry, Judge Gillese and Judge MacPherson have been named The Globe and Mail's Nation Builders of the year. The national newspaper announced the honour on Dec. 13, in recognition of the wisdom and courage behind their June 10 court decision in favour of equal marriage.

"This case is ultimately about the recognition and protection of human dignity and equality," the judges wrote in their historic decision.

"The Court of Appeal ruling was an example of the willingness of the nation's judges to go with speed and precision where politicians only dither," the Globe said. "In a year when Canada drew a forceful line with the United States by refusing to join the war in Iraq and moving ahead with the decriminalization of marijuana, the legalization of same-sex unions was the most concrete sign of the country's determination to be a socially liberal place, where differences can be celebrated and choice will be honoured. Suddenly, Canada — as The Economist cheekily pointed out — was cool. The freedom to pledge those time-honoured vows of love reverberated far beyond the couples who lined up to say them."

Thanks to the supporters of equal marriage who wrote to the Globe to encourage this recognition.

Former Canadian Justice Minister, and Attorney General, Martin Cauchon will receive an honour from the Philadelphia-based Equality Forum next year, for his role in support of equal marriage.

November 16, 2003

Nominating the Ontario Court of Appeal
Canada's 2003 Globe and Mail Nation Builders

"This year, it may be a tight race again. Canada is not short of stars. There's Chief Justice Roy McMurtry, Mr. Justice James MacPherson and Madam Justice Eileen Gillese, all of the Ontario Court of Appeal, who opened up the same-sex marriage debate. In a historic judgment this summer, the three made same-sex marriages legal for the first time in Canada, a ruling that immediately put pressure on the federal government to consider legislation on same-sex unions. "
Canadians who help make country better,
The Globe and Mail, Nov. 15, 2003

They have been attacked for upholding equality when some politicians refused to honour the Charter protections for gays and lesbians. They were criticized for attending a Law Society Of Upper Canada reception and being photographed with us, and they were accused of bias by the irrational and mean-spirited losers in our landmark marriage case.

Now we have a chance to offer a collective "thank you" to the wise and courageous judges who ended marriage discrimination against same-sex couples. The June 10, 2003, decision of the Ontario Court of Appeal's Chief Justice Roy McMurtry, Mr. Justice James MacPherson and Madam Justice Eileen Gillese opened the door to equal marriage in Ontario, and set in motion the long-awaited arrival of this fundamental right in British Columbia, and soon, through-out the rest of Canada. Their precedent-setting decision continues to reverberate around the world.

The Globe and Mail, one of Canada's national newspapers, is soliciting input for nominations for recognition as Canada's Nation Builder for 2003. We enthusiastically agree with the paper's inclusion of these judges in their list of great Canadians; we hope you do too.

Please join us in expressing appreciation for these judges by nominating them as this year's Nation Builders:

Select to nominate these Nation Builders for 2003:
Chief Justice Roy McMurtry
Mr. Justice James MacPherson
Madam Justice Eileen Gillese

Highlights of the Ontario Court of Appeal decision:

"... this case is ultimately about the recognition and protection of human dignity and equality in the context of the social structures available to conjugal couples in Canada ... Through the institution of marriage, individuals can publicly express their love and commitment to each other. Through this institution, society publicly recognizes expressions of love and commitment between individuals, granting them respect and legitimacy as a couple. This public recognition and sanction of marital relationships reflect society’s approbation of the personal hopes, desires and aspirations that underlie loving, committed conjugal relationships. This can only enhance an individual’s sense of self-worth and dignity. "

" In our view, “marriage” does not have a constitutionally fixed meaning. Rather, like the term “banking” in s. 91(15) and the phrase “criminal law” in s. 91(27), the term “marriage” as used in s. 91(26) of the Constitution Act, 1867 has the constitutional flexibility necessary to meet changing realities of Canadian society without the need for recourse to constitutional amendment procedures."

"In this case, the common law requirement that persons who marry be of the opposite sex denies persons in same-sex relationships a fundamental choice – whether or not to marry their partner."

"Denying same-sex couples the right to marry perpetuates the contrary view, namely, that same-sex couples are not capable of forming loving and lasting relationships, and thus same-sex relationships are not worthy of the same respect and recognition as opposite-sex relationships. Accordingly, in our view, the common law requirement that marriage be between persons of the opposite sex does not accord with the needs, capacities and circumstances of same-sex couples. This factor weighs in favour of a finding of discrimination."

"... it is our view that the dignity of persons in same-sex relationships is violated by the exclusion of same-sex couples from the institution of marriage. Accordingly, we conclude that the common-law definition of marriage as “the voluntary union for life of one man and one woman to the exclusion of all others” violates s. 15(1) of the Charter."

"Stating that marriage is heterosexual because it always has been heterosexual is merely an explanation for the opposite-sex requirement of marriage; it is not an objective that is capable of justifying the infringement of a Charter guarantee."

"We fail to see how the encouragement of procreation and childrearing is a pressing and substantial objective of maintaining marriage as an exclusively heterosexual institution. Heterosexual married couples will not stop having or raising children because same-sex couples are permitted to marry. Moreover, an increasing percentage of children are being born to and raised by same-sex couples."

"Encouraging companionship between only persons of the opposite sex perpetuates the view that persons in same-sex relationships are not equally capable of providing companionship and forming lasting and loving relationships."

"It is not disputed that marriage has been a stabilizing and effective societal institution. The Couples are not seeking to abolish the institution of marriage; they are seeking access to it."

"... we hold that the common law definition of marriage is inconsistent with the Charter to the extent that it excludes same-sex couples. [148] With respect to the second step, in our view the remedy that best corrects the inconsistency is to declare invalid the existing definition of marriage to the extent that it refers to “one man and one woman”, and to reformulate the definition of marriage as “the voluntary union for life of two persons to the exclusion of all others”. This remedy achieves the equality required by s. 15(1) of the Charter but ensures that the legal status of marriage is not left in a state of uncertainty."

"There is no evidence before this court that a declaration of invalidity without a period of suspension will pose any harm to the public, threaten the rule of law, or deny anyone the benefit of legal recognition of their marriage. We observe that there was no evidence before us that the reformulated definition of marriage will require the volume of legislative reform that followed the release of the Supreme Court of Canada’s decision in M. v. H. In our view, an immediate declaration will simply ensure that opposite-sex couples and same-sex couples immediately receive equal treatment in law in accordance with s. 15(1) of the Charter."

Summaries from the Court of Appeal for Ontario: