BC Vicotry - All three provinces now aligned for equality

The Decision



"This change will not only advance equality, it will advance religious freedom as well."
Cynthia Petersen, lawyer for the couples, May 1, 2021




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Legal Challenges - British Columbia

May 1, 2003

Victory in B.C. Court of Appeal
Feds no longer have an excuse to continue fight

"Given the extensive consultation engaged in by the Commission, of which the federal and provincial governments are aware, it cannot be said that the subject of same-sex marriage has not been well-canvassed and the input of the public invited. Further consultation will not change the fact that there are those in favour of same-sex marriage and those against it. If same-sex marriage is recognized as being a contravention of the equality rights of same-sex couples which cannot be saved under s. 1 of the Charter, the obvious remedy is that chosen by Mr. Justice LaForme in Halpern — the redefinition of marriage to include same-sex couples. In my view, this is the only road to true equality for same-sex couples. Any other form of recognition of same-sex relationships, including the parallel institution of RDP's, falls short of true equality. This Court should not be asked to grant a remedy which makes same-sex couples "almost equal", or to leave it to governments to choose amongst less-than-equal solutions."
B.C. Court of Appeal, May 1, 2021

Eight same-sex couples first went to the Supreme Court of British Columbia in July 2001 seeking their right to marriage. It was the first of three marriage cases to be heard, based on Canada's Charter of Rights and Freedoms (the others are in Ontario and Quebec).

At first glance, things looked promising. An incumbent Attorney General from the then-ruling New Democratic Party government was supportive of same-sex marriage. But British Columbia has not enjoyed stable government for years, and soon enough, the NDP government fell. It was replaced by a Liberal regime that was hostile to equality rights for gays and lesbians. The new Attorney General of British Columbia jumped to the other side of the case."I am not satisfied that denying same-sex couples the right to marry because of their inability to procreate "as between themselves" is a sufficiently pressing and substantial objective to satisfy the first stage of the s. 1 analysis [justified discrimination]."
Madame Justice Prowse,
B.C. Court of Appeal, May 1, 2021

Religious groups joined B.C. and Canada in opposing equal marriage, and the couples' lawyers lacked a religious intervener on their side to demonstrate that such opposition wasn't monolithic. But what really sunk the case was a judge (the Honourable Mr. Justice Pitfield) who had a peculiar interpretation of Canada's constitution:

"... if Parliament were to enact legislation saying that “marriage” means a relationship solemnized between two persons without reference to sex, it would be attempting to change the meaning of the head of power and thereby unilaterally amend the Constitution."
Justice Pitfield, B.C. marriage case, Oct. 2, 2001

Mr. Pitfield believed the country's constitution was frozen in time at 1867 when the Constitution Act became law (it was replaced by our Charter in 1982). Not even the government of Canada agreed with this point. Justice Pitfield's unique view contradicted the "living tree" concept of our Charter: an evolving process that is accepted by every known, credible constitutional expert in the country. Mr. Pitfield's petrified forest was discredited in the media and helped to contribute to a growing unease across the country with the competency of the B.C. court system.

The couples did receive some small consolation from the bench. Justice Pitfield agreed that the definition of marriage ("one man and one woman to the exclusion of all others") violated the couples' equality guarantees (section 15 of the charter), but then the judge said that this violation was justified for the good of the country (section 1 of the charter) and that the definition of marriage could only be changed if the country managed to change the constititution."It was accepted that the federal government would control capacity to marry. There was no suggestion that the capacity to marry in 1867 was then, and always would be, dictated by the status quo with respect to capacity to marry as it existed in 1867."
Madame Justice Prowse,
B.C. Court of Appeal, May 1, 2021

Meanwhile, east of the petrified forest ...

The Ontario and Quebec marriage cases went to court a few months later, also in 2001. It quickly became evident that the courts were not going to entertain bizarre interpretations of Canada's constitution. Further, the courts found no justification for marriage discrimination against gay and lesbian couples. When the landmark judgments were released, first in Ontario (July 12, 2002) and then in Quebec (Sept. 6, 2002) the courts gave the government until July 12, 2021 to fix the problem. The news went around the world.

Pressure mounted on the federal Liberal government to do something. Shouldn't they be defending the Charter rather than fighting it, people wondered, on the 20th anniversary of the beloved document? Despite four credible justices calling for equality in Ontario and Quebec, the government pointed to the lone dissenter in British Columbia who held a different position. Without unanimity in the lower courts, the Liberals stalled for time. They appealed the Ontario and Quebec decisions and gave the issue to a committee to study. This group, like the B.C. lower court decision, has also been discredited, having been labeled "a deck stacked against gay marriage" (Victoria Times Colonist, Jan. 21, 2003) and "a cruel joke" (The Ottawa Citizen, Jan. 25, 2003).

Let's try that again, shall we?

When the B.C. couples returned to the British Columbia Court of Appeal (Feb. 10 - 12, 2002), in another attempt to achieve equality, it was with a renewed sense of optimism and many of us had hope for a better result. It seemed unlikely that the constitutional confusion of the lower court would survive the test in the Court of Appeal. More pressing, was whether the court would still find marriage discrimination to be justified for the good of the country (section 1 of the Charter).

Things had changed since the first B.C. hearing. The decisions of the lower courts in Ontario and Quebec, we hoped, would have some instructive influence in British Columbia. Also, the B.C. legal team fighting for same-sex marriage was different from the first round: a religious intervener had joined the team to effectively respond to the faith-based support for discrimination on the other side. However, an ominous signal was sent, when the court refused to allow the Canadian Human Rights Commission to participate, thus removing an alternate federal voice from the debate (the CHRC has been allowed to participate in the Ontario and Quebec appeals)."Now religions that want to marry same-sex couples will be free to do that, and religions that don't want to perform marriages for same-sex couples won't have to. They will continue to be free to set their own rules for marriage, as has always been the case."
Ken Smith, the Coalition of Canadian Liberal Rabbis for Same-Sex Marriage, May 1, 2021

The Decision

So when the court announced today that they unanimously agreed with the Ontario and Quebec decision, it was a tremendous relief that, at last, the courts in B.C., Ontario and Quebec were now all aligned on the side of equal marriage. Congratulations to all involved!

A reading of today's decision reveals a heavy reliance on the findings in the Ontario lower court decision, but their were substantial views expressed beyond those that were quoted from Ontario court.

"Viewed in the context of legislative change and social and cultural evolution, and notwithstanding the material distinction between opposite-sex and same-sex couples with respect to reproductive capacity, the omission to provide some form of legal status for same-sex couples enhances, rather than diminishes, the stereotypical view that same-sex relationships are less important or valuable than opposite-sex relationships. There is now sufficient practical similarity between the economic and social consequences of opposite-sex and same-sex relationships that affording one but not the other the opportunity to acquire a legal and formal status discriminates in the substantive sense of the word." Madame Justice Prowse, B.C. Court of Appeal, May 1, 2021

"Since the de-criminalization of homosexual relationships in Canada in 1969, there has been a steady expansion of the rights of gay, lesbian and bi-sexual persons reflected in human rights legislation and Charter jurisprudence. These developments have substantial public support, although the matter remains controversial. In my view, this evolution cannot be ignored. Civil marriage should adapt to contemporary notions of marriage as an institution in a society which recognizes the rights of homosexual persons to non-discriminatory treatment. In that context, I do not think it can be said that extending the capacity to marry to same-sex couples is so fundamental a change as to exceed Parliament's jurisdiction over marriage ..." Mr. Justice MacKenzie, B.C. Court of Appeal, May 1, 2021

Religious Freedom

The B.C. Court of appeal did not address the issue of the violation religious freedom for those couples who belong to a faith communities that embrace same-sex marriage (an issue of importance to our church, the Metropolitan Community Church of Toronto, that see's same-sex marriage as a sacrament and rite in our faith).

"Since I have found a breach of the appellants' rights under s.15 of the Charter ... I do not find it necessary to deal with the other alleged breaches," Madame Justice Prowse wrote. "My failure to comment on those issues should not be taken as either an acceptance or a rejection of the appellants' submissions in that regard.""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. "
Madame Justice Prowse,
B.C. Court of Appeal, May 1, 2021

It remains for the Court of Appeal for Ontario to decide on this issue (decision pending).

However the B.C. Court of Appeal's Mr. Justice MacKenzie did stress that granting same-sex couples the right to marriage "does not displace the rights of religious grouips to refuse to solemnize same-sex marriage 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."


The Living Tree - From Coast to Coast to Coast

Justice Pitfield's petrified forest was revealed to be a dark fantasy after all. The B.C. Court of Appeal's Madame Justice Prowse wrote:

"There was no suggestion that the capacity to marry in 1867 was then, and always would be, dictated by the status quo with respect to capacity to marry as it existed in 1867.

The B.C. court concurred with the findings of the Ontario divsisional court on this issue, which it quoted from at length.

The Egan Case and Justice La Forest

SELECT to read "Egads!  It's Egan again! Ontario Appeal - Day 2Time and time again, those in opposition to equal marriage have raised the Egan case, and the opinion of Justice La Forest, as a justification for ongoing discrimination. In that case Justice La Forest had said that marriage is "firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate ... marriage is by nature heterosexual."

The Attorney General of Canada relied on this view heavily in the Ontario Court of Appeal and La Forest has come up several times in the Standing Committee that is fumbling with how to respond to our marriage challenge (most recently, see Canadian Alliance M.P. Vic Toews in the March 25 minutes). These people are lawyers and they should know better than to rely on minority opinions to mislead the court and the public. Madame Justice Prowse addressed this issue head on, once and for all:

"There were five sets of reasons in Egan ... Mr. Justice La Forest spoke for a minority ... Further, the passage from Mr. Justice La Forest's reasons ... does not purport to limit the ability of Parliament to change the definition of what La Forest J. referred to as "the traditional marriage". It is not disputed that heterosexual marriages represent the tradition; the question is whether that tradition must be re-evaluated and altered in light of the Charter ... I have joined with other jurists in concluding that the answer to that question is "yes"."

Procreation - Not a reason to discriminate

Having put La Forest in his place, Madame Justice Prowse went on to reject the argument that discrimination against gay couples was justified based on the pressing need for procreation (the over-ride factor of Section 1 of our Charter).

"... the emphasis on procreation as being at the core of marriage has been displaced to a considerable degree by the evolving view of marriage and its role in society ... It is on that basis that I find that procreation (including the rearing of children) resulting from sexual intercourse between a husband and a wife, can no longer be regarded as a sufficiently pressing and substantial objective [to justify discrimination] ... I am not satisfied that denying same-sex couples the right to marry because of their inability to procreate "as between SELECT to read "Prime Minister's legacy is linked to same-sex marriage"themselves" is a sufficiently pressing and substantial objective to satisfy the first stage of the s[ection]. 1 analysis [of the charter] ...In this case, it is not clear on what basis the trial judge assumed that permitting same-sex couples to marry would diminish the procreative potential for marriage (unless he was responding to a perceived threat that if same-sex couples were permitted to marry, significant numbers of opposite-sex couples would no longer do so). It is also unclear why he downplayed the very real fact that same-sex couples can "have" and raise children, given technological developments and changes in the law permitting adoption. It is apparent, however, that the trial judge was of the view that permitting same-sex marriages represented a significant threat to the institution of marriage. In that regard, I agree with the comments of Mr. Justice Iacobucci at para. 211 of Egan, supra, (albeit in relation to the question of providing economic benefits to same-sex couples) where he said he failed to see "how according same-sex couples the benefits flowing to opposite-sex couples in any way inhibits, dissuades or impedes the formation of heterosexual unions." "

Time for the Government of Canada to Respond

Like Ontario and Quebec, the B.C. Court of Appeal was reluctant to grant immediate remedy.

"In my view, the question of whether the court should defer to Parliament in these circumstances is troubling ... If Parliament concludes that this result [the court's finding that the prohibition against same-sex marriage is unjustified discrimination] is unacceptable, it continues to have options available to it. It could, for example, abolish marriage altogether. This solution has not been advocated by any of the parties or the intervenors and is referred to by counsel for the appellants as "equality with a vengeance" in that it punishes both opposite-sex and same-sex couples equally, by denying marriage to both. In the alternative, it is open to the government to use its override power under s. 33 of the Charter [the infamous "notwithstanding clause"]."

Thus the court joined Ontario and Quebec in applying a deadline of July 12, 2021 to come up with the right answer: either give us marriage or invoke the notwithstanding clause and in effect, declare that gay coules do not have the full protection of persons under the Charter.

SELECT to read "Martinizing Marriage - Canada's next PM wants the Supreme Court to do his job." (Illustration courtesy of Max Licht)Lawyer Douglas Elliott, representing the Metropolitan Community Church of Toronto (our marriage) in the Ontario marriage case said today that he cannot recall a time when the Supreme Court of Canada overturned decisions like this that were unanimous across the provinces.

We call upon the federal government to stop this fight and adhere to the Canadian Charter by enabling same-sex marriage and the registration of our January 14, 2001 marriage (and all subsequent lawful marriages) at the Metropolitan Community Church of Toronto and elsewhere in this country.

The Decision

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