EGALE Factum for BC Marriage Appeal (Feb. 10-12, 2003)

PART 1  -  STATEMENT OF FACTS

1.         The Appellants are Egale Canada Inc., a national organization committed to the advancement of equality for lesbians, gays, bisexuals and transgendered people in Canada (hereafter “Egale”), and five lesbian and gay couples who wish to get married.  Each of the five couples has applied for and been denied a marriage licence for the sole reason that they are of the same sex.

 

2.         The individual Appellants are of different ages, ethnicities and religions, and they have diverse occupational and regional backgrounds.  Some of the couples have cohabited for a relatively short time, while others have already spent decades of their lives together.  Some have raised children, some intend to parent in the future.  Some have previously been married to opposite-sex spouses.

 

3.         The Affidavits sworn by the individual Appellants reveal that their reasons for wanting to marry are the same as those of many heterosexual partners, including romance, strengthening family support, social recognition, ensuring legal protection, financial and emotional security, religious or spiritual fulfillment, providing a supportive environment for children, and strengthening their commitment to their relationship.  We commend their Affidavits to the Court, as they speak most eloquently of their hopes, dreams, aspirations, and personal goals in seeking the right to marry.  The following are a few excerpts:

“Shane and I want to get married because we love each other, and we see marriage as an opportunity to celebrate and legitimize our relationship.  We have been loving, loyal and committed since the day we met.  For Shane and me, marriage will represent a recognition of the value of our relationship and the freedom to fulfill our dreams.”

                        Affidavit of David Shortt, A.R. I, at p.103

 

“It is very hard to put into words all of the reasons I want to marry Melinda.  Of course, the number one reason is because I love her.  I want to be able to stand before my family, my friends and God and promise to spend my life with her.  Straight couples do not need to prove any of these reasons in order to get a  marriage license.  I have all of these reasons and more.  I am committed to Melinda mind, body, and soul but I cannot get a marriage licence.  . .  Marriage is morally and spiritually important to me.  I want our children to be born and raised in a married environment because it would confirm to our family, friends and, ultimately, our children that we are committed and in love.”

Affidavit of Tanya Chambers, A.R. I, at p.117


“I want to marry Tanya because I love her with all my heart.  We want to have children and, to us, being married is very important.  We want our children to grow up knowing that their parents are in a committed, loving relationship that is no different from other spousal relationships. Being prevented from marrying makes Tanya and me feel inferior.  I don’t believe that people will truly take gay and lesbian relationships seriously until we are allowed to get married.”

            Affidavit of Melinda Roy, A.R. I, at p.110

 

“I met my spouse, Lloyd Thornhill, in 1968.  From the beginning, I believed that God destined us to be together.  We have been together in a monogamous, loving relationship for the past 32 years.  If we could have married years ago, we would have.... / Denying us the right to marry sends a message that our relationship is less deserving of recognition just because we are gay.  I believe that Lloyd and I deserve to be able to legally marry, as heterosexual couples do, and to be recognized as a family unit.”

                        Affidavit of Robert Peacock, A.R. I, at p.157-58

 

“A major marker of adult status is denied us.  Choosing not to marry when you can is one thing; to be denied the right to make that choice is another.  We are human beings with human aspirations and desires, and the same human need to build relationships and a home.  We view marriage as an essential component of our aspirations and believe that the law should not stand in our way.”

Affidavit of Mary Theresa Healy, A.R. I, at p.146

 

 

4.         The Appellant Egale recognizes that not all same-sex couples in Canada wish to marry.  It is Egale’s perspective, however, that the within appeal nevertheless has implications for the equality, liberty and expression rights of all lesbians, gays, and bisexuals, because the decision of whether or not to marry is one that individuals are entitled to make for themselves.  Heterosexuals enjoy the inherent dignity of having the freedom to make their own choices over the fundamental personal decision of whether or not to marry.  Denying same-sex partners that same freedom demeans the dignity of all lesbians, gays and bisexuals  --  regardless of whether we are single or in a conjugal relationship, and irrespective of our own personal views on marriage --  just as the miscegenation statutes that were once in force in the United States constituted an affront to the dignity of all Black people (not just those who were in interracial relationships or who wished to marry a person of a different race).

 

PART 2  -  ERRORS IN JUDGEMENT


5.         The chambers judge erred in concluding that marriage is limited by the common law to the union of a man and a woman, and in ruling that this opposite-sex limitation could not be removed by the Court.

 

6.         The chambers judge also erred in concluding that any common law bar against same-sex marriage is not subject to Charter scrutiny.

 

7.         Moreover, in his alternative reasoning, the chambers judge erred in concluding that:

a)         the common law bar against same-sex marriage does not infringe rights and freedoms guaranteed by ss. 2 and 7 of the Charter; and

 

            b)         the infringement of s.15 equality rights occasioned by the bar against same-sex marriage is justifiable under s.1 of the Charter.

 

 

PART 3    ARGUMENT

 

A.        No Common Law Bar Against Same-Sex Marriage

8.         The chambers judge erred in concluding that marriage is limited by the common law to a union of two persons of the opposite sex.  He based this conclusion primarily on Hyde v. Hyde, a British decision that constitutes neither binding precedent nor compelling judicial authority for the existence of a common law bar against same-sex marriage.

Hyde v. Hyde (1866), L.R. 1 P&D 130

 

9.         Hyde is an 1866 case in which a Matrimonial Court was required to determine the validity of a heterosexual marriage that had been contracted in a foreign jurisdiction where polygamy was lawful.  In his reasons for judgment, Lord Penzance described marriage as “the voluntary union for life of one man and one woman to the exclusion of all others.”  His reference to the sex of the parties was clearly an obiter remark, insofar as the issue of same-sex marriage was not before him and, indeed, was not even considered by him.  The ratio of his ruling was not that marriage is only valid when contracted by a man and a woman, but rather that a marriage between a man and woman is only valid when it is monogamous.  Consequently, the Hyde decision does not constitute the source of a common law restriction against same-sex marriage, nor even a pronouncement on the state of the law as it existed prior to 1866 in respect of the validity of same-sex marriage.  The chambers judge erred in concluding otherwise.

Hyde v. Hyde (1866), L.R. 1 P&D 130 at 132-133

 

10.       Even if the chambers judge was correct in concluding that the common law precludes two persons of the same sex from entering into a valid marriage, he erred in finding that the Court could not remove that bar.  As the Supreme Court of Canada has recognized, Courts are the custodians of the common law.  They possess not only the power but also the duty to ensure that the common law adapts and evolves to reflect the emerging social realities, needs, and values of our contemporary society.  The common law is not static, but rather dynamic and flexible.   As Justice McCardie of the King’s Bench Division remarked in Prager v. Blatspiel, the common law “must grow with the development of the nation.  It must face and deal with changing or novel circumstances.  Unless it can do that it fails in its function and declines in its dignity and value.  An expanding society demands an expanding common law.”

Prager v. Blatspiel, Stamp & Heacock , [1924] All E.R. Rep. 524 at 527; R. v. Salituro, [1991] 3 S.C.R. 654 at 670 and 678; Hill v. Church of Scientology, [1995] 2 S.C.R. 1130 at 1169; RWDSU Local 558 v. Pepsi-Cola Canada, 2002 SCC File No.27060 (not yet reported), at paras.17, 22;  Layland v. Ontario (1993), 14 O.R. (3d) 658 (Gen.Div.), per Greer J. at 667 (dissenting, but not on this point)

 

 

11.       Contemporary Canadian society is characterized by cultural, social, economic, and political realities that do not remotely resemble those that prevailed in England at the time of the Hyde decision, nor even in Manitoba in 1975, when a Canadian court (in Re North and Matheson) first addressed the issue of a gay couple seeking a licence to marry.  At that time, Parliament had only recently decriminalized consenting adult homosexual activity (1969) and had not yet repealed the statutory immigration bar against lesbians and gays entering Canada (1977).  Since then, sweeping legislative reforms have occurred at both federal and provincial levels to prohibit discrimination based on sexual orientation and to give cohabiting same-sex partners access to spousal benefits that were previously granted only to heterosexual partners, including most of the benefits once reserved exclusively for married spouses.  Today, same-sex couples, as well as individual lesbians, gays, and bisexuals, are parenting children at rapidly rising rates. Custody and adoption laws have been amended to treat lesbian, gay, and bisexual parents equally, due to a recognition by courts and legislatures that there is no basis for discriminating against them.  Many Churches, Synagogues, and other places of worship are welcoming the full integration of their lesbian, gay, and bisexual congregants by, among other things, celebrating same-sex relationships in commitment ceremonies.  Public opinion regarding homosexuality, lesbianism, and bisexuality -- which, until 1973, were pathologized as mental disorders by the psychiatric profession -- has shifted dramatically toward acceptance of the existence of diverse sexual orientations as a manifestation of normal human variance.  Indeed, recent national polls demonstrate that a substantial majority of Canadians support allowing same-sex couples to marry.  In the context of these modern social realities, an antiquated common law rule that privileges heterosexual couples by deeming them exclusively worthy of access to the institution of marriage is shamefully out of date.

Re North et al. and Matheson (1975), 52 D.L.R. (3d) 280 (Man. Co. Ct);  Affidavits of Adam, A.R. III, pp. 355-356, 362; Mivasair, A.R. I, p.90; Arnup, A.R. III, pp. 465, 467, 476-480; Eichler, A.R. I, pp.47-48; Shortt, A.R. I, p.102; Peacock, A.R. I, p.157; Thornhill, A.R. I, pp.162-163; Roy, A.R. I, pp.109-110; Roberts, A.R. I, pp.133, 134-138; Denny, A.R. I, pp.126-128; Young, A.R. I, pp.121-123; Healy, A.R. I, pp. 142-145

 

12.       The chambers judge ought to have removed the common law restriction against same-sex marriage, not only because it has fallen out of step with the evolving social fabric of our society, but also because the judiciary has an obligation to ensure that the common law evolves and develops in a manner that is consistent with the fundamental values and principles underlying the Charter.  As Chief Justice McLachlin noted in the recent Pepsi-Cola Canada case, “the common law does not exist in a vacuum. The common law reflects the experience of the past, the reality of modern social concerns and a sensitivity to the future. As such, it does not grow in isolation from the Charter, but rather with it.”

RWDSU Local 558 v. Pepsi-Cola Canada, 2002 SCC File No.27060 (not yet reported), at para.19; R. v. Salituro, [1991] 3 S.C.R. 654 at 670-675; Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835 at 875 and 877; Hill v. Church of Scientology of Toronto, [1995] 2 S.C.R. 1130 at 1164 and 1169

 

 

13.        Maintaining a common law bar against same-sex marriage is inconsistent with Charter values.  The purported origin of the impugned bar -- namely, the Hyde decision -- reveals a foundation that is offensive to the Charter principles of religious freedom and respect for religious diversity.  In arriving at his conclusion in Hyde, Lord Penzance reasoned that the common law rules regarding the validity of marriage must correspond to the “Christian conception of marriage”.  He cited and relied upon two earlier cases (i.e., Warrender v. Warrender and  Ardaseer Cursetjee v. Perozeboye) in which, among other things, Courts characterized Turkey as an “infidel nation”, described Turkish marriages as “infidel” marriages, and held that parties to a Parsee marriage in India “could not have ... reasonably expected to attain duties and obligations other ... than such as from time out of mind were incident to their own caste.”   This approach to the development of the common law is clearly inappropriate in our post-Charter era because it situates the common law within a singular religious perspective and denigrates alternative perspectives.  To apply the reasoning in Hyde today is to ignore the reality of the pluralist Canadian polity and to offend against Charter values of multiculturalism and freedom of religion.  The analytical approach adopted by Lord Penzance, and the authorities upon which he relied, demonstrate unacceptable religious and ethnic bias and intolerance, which must be disavowed.

Hyde v. Hyde  (1866), L.R. 1 P&D 130 at 134-135, and 137-138

 

14.       The reasoning in Hyde has been criticized and rejected by Canadian courts in a number of cases involving potentially polygamous marriages, such as the 1948 British Columbia Supreme Court decision of Lim v. Lim, in which Judge Coady expressed his view that the implications of the Hyde decision were “repellent to one’s sense of justice”; the 1962 British Columbia Supreme Court case of Sara v. Sara, in which Judge Lord declined to follow “the rule in Hyde... in all its strictness”, favouring instead “a more modern and enlightened view” consistent with the values of a country that “welcomes immigrants”; and the 1976 Ontario decision of Re Hassan and Hassan, in which Justice Cory, then of the High Court of Justice, reviewed “the history in England of the gradual erosion and final discarding of the principle enunciated by Hyde v. Hyde” and upheld the chambers judge’s ruling that “the case of Hyde v. Hyde does not represent the common law in the Province of Ontario.”

Lim v. Lim, [1948] 2 D.L.R. 353 (B.C.S.C.) at 358; Sara v. Sara (1962), 31 D.L.R. (2d) 566 (B.C.S.C.) at 571-574, rev’d on other grounds (1962), 36 D.L.R. (2d) 499 (B.C.C.A.); Re Hassan and Hassan (1976), 12 O.R. (2d) 432 at 433-439

 

 

15.       In light of the above, it is clear that preserving the bar against same-sex marriage is inconsistent with the Court’s responsibility to ensure that the common law develops in conformity with Charter principles.  Even apart from its offensive origins, the impugned bar is contrary to fundamental Charter values in its contemporary application.  The decision of whether or not to marry a conjugal partner is, as Justice L’Heureux-Dube remarked in Miron v. Trudel, “one of the most personal decisions an individual will ever make over the course of his or her lifetime.”  It is a deeply personal matter that has implications for an individual’s liberty, faith, sense of identity, self-image, and degree of personal satisfaction.  It is a choice that belongs with the individual and to deny lesbians, gays, and bisexuals the freedom of making that choice is to deny us autonomy in  respect of a matter that has profound effects on our personal lives, as well as to suggest that our relationships are unworthy of the recognition and status afforded to heterosexual marriages.  Clearly, this is inconsistent with the Charter values of promoting individual liberty and respect for the human dignity of all people.

            Miron v. Trudel, [1995] 2 S.C.R. 418 at 471

 

16.       As the Law Commission of Canada noted in its report entitled Beyond Conjugality (released in December 2001),

[t]he current law does not reflect the social facts: as the Supreme Court of Canada has recognized, the capacity to form conjugal relationships characterized by emotional and economic interdependence has nothing to do with sexual orientation. Furthermore, whether or not denial of same-sex marriage infringes the Charter, adherence to the fundamental values of equality, choice and freedom of conscience and religion requires that restrictions on same-sex marriage be removed; the status quo reinforces the stigmatization felt by same-sex couples. If governments are to continue to maintain an institution called marriage, they cannot do so in a discriminatory fashion.

 

It is noteworthy that the Canadian Human Rights Commission agreed with this statement in its most recent annual report (released in March 2002).

Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships (Ottawa, December 21, 2001), chapter 4, p.17 (emphasis added); Canadian Human Rights Commission, Annual Report 2001 (http:/www.chrc.ccdp.ca)

 

17.       In Layland v. Ontario -- the only other post-Charter case in which a Canadian court has considered the issue of the validity of same-sex marriage -- Judge Greer found that it was inappropriate to follow the Hyde case “given what has taken place since the Charter was passed”.  In her dissenting judgment, she declared that there is therefore “no common law prohibition against same-sex marriages in Canada.”  We respectfully submit that her reasoning and conclusion should be adopted by this Court.

Layland v. Ontario (Minister of Consumer and Commercial Relations) (1993), 14 O.R. (3d) 658 (Gen.Div.), per Greer, J. at 668 and 671 (dissenting)

 

 

18.       We further submit that the chambers judge erred when he found that removing the restriction against same-sex marriage would have complex legal ramifications, such that the change should be left to the legislature rather than being implemented by the Court.

 


19.       The federal Parliament and Provincial Legislatures have enacted sweeping legislative amendments to eliminate distinctions that previously existed between the rights and responsibilities of married spouses and those of common law partners (including cohabiting same-sex partners).  The Courts were a catalyst for much of this legislative reform, having declared unconstitutional several statutes that denied spousal benefits to same-sex couples (eg. Knodel v. B.C., Kane v. Axa Insurance, Rosenberg v. Canada, M. v. H., etc.).  In the context of this transformed legal landscape, it cannot seriously be contended that granting same-sex couples equal access to marriage -- and hence automatic access to the statutory incidents that accompany marital status -- would have any complex social, legal or economic ramifications.  Rather it would constitute a simple and logical culminating step in a long history of judicial and legislative evolution toward full and equal recognition of same-sex relationships.

See, for example, Modernization of Benefits and Obligations Act, S.C. 2000, c.12; Definition of Spouse Amendment Act, 1999, S.B.C. 1999, c. 29; Definition of Spouse Amendment Act, 2000, S.B.C. 2000, c. 24; An Act to amend various legislative provisions concerning de facto spouses, S.Q. 1999, c.14; An Act to amend certain statutes because of the Supreme Court of Canada decision in M. v. H., S.O. 1999, c.6; The Miscellaneous Statutes (Domestic Relations) Amendment Act, 2001, S.S. 2001, c.50; The Miscellaneous Statutes (Domestic Relations) Amendment Act, 2001 (no. 2), S.S. 2001, c.51; An Act to comply with the Supreme Court of Canada decision in M. v. H. Act, S.M. 2001, c.37; Law Reform (2000) Act, S.N.S. 2000, c.29; Knodel v. B.C.(Medical Services Commission)  (1992), 6 C.P.C. (3d) 340 (B.C. S.C.), additional reasons to (1991), 58 B.C.L.R. (2d) 356, 91 C.L.L.C. 17,023, [1991] 6 W.W.R. 728 (S.C.); Kane v. Axa Insurance, [1997] O.J. No. 3979;  Rosenberg v. Canada (Attorney General)  (1998), 158 D.L.R. (4th) 664; M. v. H, [1999] 2 S.C.R. 3.

 

 

20.    The chambers judge erred when he held that state recognition of same-sex marriages would nevertheless entail complex legal changes, because new rules regarding annulment and dissolution of such marriages would need to be developed.  He specifically mentioned, by way of examples, the common law consummation requirement and the legal meaning of “adultery” as a statutory ground for divorce, noting that the transferability of these concepts to same-sex marriage is questionable.  He remarked that the parties to a same-sex marriage “should know before they formalize the relationship what factors may result in it being void, voidable, or subject to dissolution,” and he concluded that legal recognition of same-sex marriage should therefore be effected by legislative enactment, not by a judge-made change to the common law.

            Reasons for judgement, paras.94-96

 

21.      The Appellants submit that the chambers judge’s concerns are without foundation.  Any uncertainty that exists regarding the essential validity and dissolution of same-sex marriages is no greater than the uncertainty that has existed and continues to exist with respect to opposite-sex marriages.  It cannot be said that heterosexuals have always known, before a marriage was  formalized, precisely what factors might result in it being void, voidable, or subject to dissolution.  On the contrary, there has been considerable uncertainty in the law and a lack of clarity remains on some issues.  For example, it is unclear whether a married woman’s conception of a child through donor insemination using another man’s sperm and without her husband’s consent constitutes “adultery” within the meaning of the Divorce Act.  This uncertainty in the law does not, however, interfere with the right of heterosexuals to get married.  Similarly, if there is any uncertainty about precisely what conduct would constitute “adultery” in a same-sex relationship, that is not a legitimate basis for continuing to deny same-sex partners the freedom to marry.  It is not necessary to legislate with respect to this issue before removing the bar against same-sex marriage – rather, any questions about the meaning of  “adultery” in same-sex marriages could be clarified over time on a case-by-case basis, just as they have been in the context of heterosexual marriages.

Orford v. Orford (1921), 49 O.L.R. 15, 58 D.L.R. 251 (S.C.); MacLennan v. MacLennan, [1958] S.C. 105 (Scotland High Court of Sessions); Tallin, “Artificial Insemination” (1956), 34 Can. Bar Rev. 1; Hubbard, “Artificial Insemination: A Reply to Dean Tallin” (1956), 34 Can. Bar Rev. 425; Lang, “Does Artificial Insemination Constitute Adultery?” (1966), 2 Man.L.J. 87 and Fullerton, “Artificial Insemination” (1979), 2 Fam.L.Rev. 31

 

 

22.    Similarly, any uncertainties that may exist with respect to the requirements for a valid same-sex marriage can easily be resolved in precisely the same way that they have been resolved for heterosexual marriages, namely through the evolution of the common law on a case-by-case basis.  Removal of the bar against same-sex marriage does not require a prior statutory enactment to specify rules regarding the voidability of same-sex marriages; heterosexual marriages have been solemnized since before Confederation without statutory codification of such rules.1

 

23.    In any event, there are only five rules affecting the essential validity of marriage, one of which is the impugned requirement that the parties be of the opposite sex.  Of the remaining four rules, all but one are readily transferable to same-sex marriages.  Specifically, a marriage is: (1) void if the parties are related to one another within certain prohibited degrees of consanguinity, (2) void if either of the spouses is a party to a prior subsisting marriage, (3) voidable if either party did not consent (i.e., did not have the mental capacity to consent, had not reached the requisite age of consent, or was influenced in obtaining their consent by fraud, mistake or duress), and (4) voidable if either party has an inability to consummate the relationship.

Berend Hovius, Family Law: Cases, Notes and Materials (Scarborough: Carswell, 1992), at  107-155; Hahlo, Nullity of Marriage in Canada (Toronto: Butterworths, 1979); Re Larsen (1980), 18 R.F.L. (2d) 14 (B.C.S.C.); Re McElroy (1979), 22 O.R. (2d) 381 (Surr. Ct.); Singh v. Kaur (1959), 29 W.W.R. 95 (B.C.S.C.); Parihar v. Bhatti 91980), 17 R.F.L. (2d) 289 (B.C.S.C.); Thompson v. Thompson (1971), 19 D.L.R. 608 (Sask. Q.B.); S.(A.) v. S.(A.) (1988), 15 R.F.L. (3d) 443 (Ont.U.F.C.); Jiwani (Samji) v. Samji (1979), 11 R.F.L. (2d) 188 (B.C.S.C.)

 

 

24.       The first three of these rules would readily apply to same-sex marriage.  The chambers judge raised concerns about the applicability of the fourth rule, noting that there might be uncertainty as to what would constitute consummation in a gay or lesbian relationship.  He failed to recognize, however, that there was uncertainty for many decades as to precisely what constituted consummation in a heterosexual relationship.  Over the years, for example, Courts were required to determine whether vaginal penetration (and what degree of vaginal penetration) was required to consummate a heterosexual marriage, whether penetration without ejaculation or with a condom qualified as consummation, whether a psychological rather than physical condition was sufficient to establish incapacity to consummate, etc.  Despite these (and other) uncertainties in the law, heterosexuals continued to marry.  Similarly, there is no reason why lesbian and gay couples could not marry today, notwithstanding that rules regarding the consummation of same-sex marriages have yet to be determined.  That determination need not occur through statutory enactment, but rather can evolve over time, as it did with respect to heterosexual marriages, through developments in the common law.

Fleming v. Fleming, [1934] O.R. 588 (C.A.) at 592; Szrejher v. Szrejher, [1936] O.R. 250 (H.C.) at 250;  Tice v. Tice, [1937] O.R. 233 (H.C.) at 235-236, upheld [1937] 2 D.L.R. 591 (C.A.); Heil v. Heil, [1942] S.C.R. 160 at 162-163; W. v. W., [1950] 1 W.W.R. 981 (B.C.C.A.) 984-985; Foster v. Foster, [1953] 2 D.L.R. 318 (B.C.S.C.); D. v. D. (1973), 3 O.R. 82 (H.C.J.) at 84-85, 94, 96, and 100; M. v. M. (1984), 42 R.F.L. (2d) 55 (P.E.I.S.C.) at 58; C.(L.A.) v. C.(C.C.), [1986] B.C.J. No.2817 (Q.L.) (B.C.S.C.);  Juretic v. Ruiz, [1999] B.C.J. No.1556 (Q.L.) (B.C.C.A.) at para.9-12

 

 

25.       It is therefore clear that new rules regarding the essential validity of same-sex marriage do not need to be developed before the common law bar against same-sex marriage is removed.  Moreover, new rules regarding the formal validity of same-sex marriage are also not required.  Provincial Governments already have elaborate structures in place to regulate marriage solemnization and there is no evidence to suggest that different structures would be required in order to accommodate same-sex couples.  For example, the British Columbia Marriage Act is silent with respect to the gender of the parties to a marriage.  The statute simply requires that an application for a marriage license be made, that a ceremony be performed by an authorized person in the presence of at least two witnesses, and that the marriage be registered in a prescribed way.  These statutory rules and regulations could apply, without amendment, to both heterosexual and same-sex spouses.

            Marriage Act, R.S.B.C. 1996, c. 282.

 

B.        Any Common Law Bar Against Same-Sex Marriage is Subject to Charter Scrutiny

26.       In the alternative, as outlined in detail below, we submit that the common law restriction against same-sex marriage is inoperative by reason of the application of s.52 of the Constitution Act, 1982.  The chambers judge erred when he declined to make a declaration to that effect, ruling instead  that the impugned restriction is not subject to Charter scrutiny.  He reasoned that the word “marriage” as it appears in s.91(26) of the Constitution Act, 1867 had, at the time of Confederation, a meaning that was restricted to opposite-sex relationships, and that this meaning is fixed, such that the federal power granted by s.91(26) does not include the power to legislate recognition of same-sex marriage.  He then dismissed the Appellants’ petition on the basis that the relief sought (namely, the removal of the bar against same-sex marriage) could not be obtained through the application of the Charter but rather requires a constitutional amendment.

27.       As outlined in detail in our s.1 argument below, the Appellants take the position that the chambers judge’s interpretation of s.91(26) is incorrect.  At this stage of the analysis, however, it is unnecessary for this Court to rule on that point.  The question of whether or not Parliament is competent to enact legislation recognizing the validity of same-sex marriage does not arise in this case since (a) no such legislation is under consideration and (b) the Appellants are not asking the Court to compel Parliament or the Legislature to enact such legislation (nor would this Court likely have the power to do so, were we to request such a remedy).

 

28.       It is useful to recall the fundamental principle of the exhaustiveness of the division of legislative powers in ss.91 and 92 of the Constitution Act, 1867. With the arguable exception of Aboriginal self-government, it is indisputable that all conceivable legislative acts fall within the jurisdiction of either the Federal Parliament or the Provincial Legislatures.  Every matter -- whether existing at the time of Confederation, or only now, or only in the future -- can be found within the legislative competence of one or other levels of Government pursuant to the Constitution Act, 1867.  There are no gaps.

Murphy v. Canadian Pacific Railway Co., [1958] S.C.R. 626 at 643; P. Hogg, Constitutional Law of Canada, Loose-leaf edition (Toronto: Carswell, 1997), at 15.9(e)

 

29.       Thus, even where a matter such as same-sex marriage appears to be “new” (i.e., not within the contemplation of the framers of the Constitution at the time of Confederation), it is not necessary to amend the Constitution Act, 1867 in order to establish the power to legislate in respect of the matter -- that power already exists in one level of Government or the other (if not under one of enumerated heads in ss.91 or 92, then pursuant to a plenary power).

 

30.       It is therefore incontrovertible that either Parliament or the Provincial Legislature has the power to legislate the recognition of same-sex marriage.  To date, neither Parliament nor the British Columbia Legislature has done so.  Moreover, neither Parliament nor the Provincial Legislature has enacted a statute purporting to deny recognition of same-sex marriage.  The Appellants are challenging the constitutionality of a common law rule, not a statutory provision.  Since the impugned bar against same-sex marriage is not statutory, there is no threshold issue of legislative competence to be addressed.

 

31.       If, at some point in the future, Parliament or the Provincial Legislature enacts a statute in respect of same-sex marriage -- whether seeking to codify or to alter the common law, and whether in response to this Court’s ruling or otherwise -- the issue of the vires of said legislation could appropriately be considered at that time.  This Court is not, however, being asked to compel either Parliament or the Provincial Legislature to enact legislation, thus the remedies sought in this case do not require consideration of which level of Government has the power to legislate in respect of same-sex marriage.

 

32.       The chambers judge misapprehended the Appellants’ requested remedies and failed to appreciate the application of s.52 of the Constitution Act, 1982 to the common law, when he concluded that the relief sought by the Appellants “cannot be delivered by Parliament under s.91(26)... without an amendment to the Constitution.”  The Appellants are not seeking any relief from Parliament.  Rather, we are seeking a declaration from the Court that the common law restriction against same-sex marriage is of no force or effect, pursuant to s.52 of the Constitution Act, 1982, because of its inconsistency with rights and freedoms guaranteed by the Charter.

            Reasons for Judgement, paragraph 124 (emphasis added)

 

C.        The Bar Against Same-Sex Marriage Violates ss.2, 7 and 15 of the Charter

33.       In his alternative reasoning, the chambers judge correctly concluded that s.15 equality rights are infringed by the bar against same-sex marriage.  He erred, however, in concluding that rights and freedoms guaranteed by ss.2 and 7 of the Charter are not infringed.  We will not make written submissions on this point, as we understand that it will be fully addressed by the Appellants in Court of Appeal File No.CA029017, which is being heard concurrently with this case.

           

D.        The Infringement of Charter Rights is Not Justified “by the Constitution Itself”

34.       The chambers judge erred by concluding that the bar against same-sex marriage constitutes a reasonable limit on Charter rights, justifiable pursuant to s.1 of the Charter.

 

35.       First, the chambers judge erred by ruling that the conventional analysis developed in R. v. Oakes is unnecessary in determining whether the infringement of Charter rights in this case is demonstrably justifiable under s.1.  He held that the impugned bar against same-sex marriage must be justifiable pursuant to s.1 because otherwise the Charter would effectively be used to override or invalidate another provision in the Constitution, namely s.91(26) of the Constitution Act, 1867.  He cited the Bill 30 and Adler cases in support of this ruling.  As outlined below, we submit that these cases are readily distinguishable and have no application to the within appeal. 

Reference Re Bill 30, [1987] 1 S.C.R. 1148; Adler v. Ontario, [1996] 3 S.C.R. 609; Reasons for Judgment, paragraphs 199-202

 

36.       The Bill 30 case involved a reference regarding the constitutionality of legislation designed to implement a policy of full funding for Roman Catholic separate high schools in Ontario.  Similarly, the Adler case involved a Charter challenge to the constitutionality of funding Roman Catholic separate schools in Ontario, without similarly funding Jewish schools and other independent Christian schools in the province.  Both cases included consideration of s.93(1) of the Constitution Act, 1867, which has an entirely different history, purpose, and content from s.91(26).  The distinction between s.93(1) and s.91(26) is key to understanding that the Bill 30 and Adler cases are not applicable to the matters at issue in the within appeal.

 

37.       Section 93 of the Constitution Act, 1867 grants to the Provinces the power to legislate in relation to education, subject to certain restrictive conditions, including s.93(1), which provides that “no law may prejudicially affect any right or privilege with respect to denominational schools which any class of persons had at the time of Union.”  The effect of this subsection is to entrench in the Constitution certain rights that were enjoyed by particular religious minorities at the time of Confederation.  Thus unlike ss.91 and 92, which simply assign legislative powers over certain classes of subjects, s.93 is a unique hybrid provision, which embodies both the assignment of legislative powers and the conferral of constitutional rights.

38.       Section 93 is also unique insofar as it represents the product of an historical compromise that was a crucial step along the road leading to Confederation.  As the Supreme Court of Canada has noted, s.93 served to moderate religious conflicts that threatened the birth of the Union.  Without the guaranteed rights and privileges accorded to religious minorities in respect of denominational schools, there would have been no Confederation.

Reference Re Bill 30, [1987] 1 S.C.R. 1148 at 1173-74; Reference re Education Act (Que.), [1993] 2 S.C.R. 511 at 529; Adler v. Ontario, [1996] 3 S.C.R. 609 at para. 29.

 

39.       In light of the history, purpose and content of s.93, it is not surprising that the Supreme Court of Canada in Adler ruled that the Ontario Government’s decision to fund Roman Catholic separate schools but not other religious schools was immune from scrutiny under s.15 of the Charter.  Subsection 93(1) confers a privileged status on those religious minorities which, at the time of Confederation, enjoyed legal rights with respect to denominational schools.  In Bill 30 and Adler, the Supreme Court of Canada acknowledged that this special status may “sit uncomfortably with the concept of equality embodied in the Charter,” but ruled that it must nevertheless be respected as part of the Confederation compromise.  It was in this context that the Supreme Court held that “one part of the Constitution cannot be used to interfere with rights protected by a different part of that same document.”

Reference Re Bill 30, [1987] 1 S.C.R. 1148 at para. 62; Adler v. Ontario, [1996] 3 S.C.R. 609 at para. 33 and 39.

 

40.       The context of the within appeal is completely different.  In Adler, the Court was effectively asked to apply one rights-conferring section of the Constitution (i.e., s.15 of the Charter) to “trump” rights conferred by another section of the Constitution (i.e., s.93(1) of the Constitution Act, 1867), which the Court held that it could not do.   Unlike s.93(1), s.91(26) does not confer any rights, rather it merely assigns legislative authority to Parliament over the subjects of “marriage and divorce”.  Thus there is no clash of constitutionally guaranteed rights in this case.

 

41.       Moreover, the Appellants’ claim does not amount to an attempt to use the Charter to interfere with the assignment of legislative power in s.91(26) of the Constitution Act, 1867.  Unlike the Bill 30 case, where the Court held that the application of the Charter in the manner asserted by the claimants would effectively remove from the Province the power granted in s.93(1) to legislate in relation to denominational schools, the application of the Charter in this case would in no way affect the assignment or scope of legislative power in s.91(26) (or in any other section) of the Constitution Act, 1867.

 

42.       In his reasons for judgement, the chambers judge noted that the power to legislate in respect of “marriage and divorce”, which was conferred upon Parliament in s.91(26), necessarily includes the power “to define some relationships, and not others, as marriage”.  While this is true, it does not follow that any distinctions legislated by Parliament in respect of marriage must therefore be automatically upheld pursuant to s.1 of the Charter.  As Justice Estey stated in the Bill 30 case, “the Charter is intended to constrain the exercise of legislative power conferred under the Constitution Act, 1867 where the delineated rights of individual members of the community are adversely affected.”

Reasons for Judgement, at para. 76; Reference Re Bill 30, [1987] 1 S.C.R. 1148 at para. 80.

 

43.       Although the Charter cannot be used to diminish or abrogate a legislative power, it is entirely appropriate for the Charter to be used to review the exercise of a legislative power.  As Justice Estey stated in Bill 30,

[a]ction taken under the Constitution Act, 1867 is of course subject to Charter review.  That is a far different thing from saying that a specific power to legislate as existing prior to April 1982 has been entirely removed by the simple advent of the Charter.  It is one thing to supervise and on a proper occasion curtail the exercise of a power to legislate; it is quite another thing to say that an entire power to legislate has been removed from the Constitution by the introduction of this judicial power of supervision. 

Reference Re Bill 30, [1987] 1 S.C.R. 1148 at para. 80.

 

44.       To adopt the language of Justice McLachlin (as she then was) in the Provincial Electoral Boundaries and Nova Scotia Speaker’s cases, it is important to distinguish between Charter claims that challenge “the fruit of the legislative tree” (i.e., the exercise of a constitutional power) and those that challenge “the tree itself” (i.e., the very existence of a constitutional power).  As she stated, “[t]he test is whether to accede to the Charter argument would amount to negating or removing a constitutional power. If so, the Charter does not apply.”  In this case, the Appellants’ Charter claims, if successful, will not negate or remove Parliament’s legislative authority under s.91(26).  The within appeal is therefore clearly distinguishable from the Bill 30 case, where the very existence of the Province’s power to legislate in respect of denominational schools was challenged.

Reference re Provincial Electoral Boundaries (Saskatchewan), [1991] 2 S.C.R. 158 at 179; New Brunswick Broadcasting Co. v. Nova Scotia (Speaker of the House of Assembly), [1993] 1 S.C.R. 319 at 390-391.

 

45.       With respect to the issue of the scope of Parliament’s legislative authority under s.91(26), it is submitted that the chambers judge’s approach -- which looks to the original intent of the framers of the Constitution in 1867 and freezes that narrow interpretation of the word “marriage” for all time -- is inconsistent with well established principles of constitutional interpretation.  Constitutional documents have unique characteristics:  they cover a magnitude of subjects with only few words and  although they are written at a particular historical moment, they are not easily amended, and are therefore intended to act as a permanent guide for the future conduct of governments.  In light of these unique characteristics, Canadian courts have developed an interpretive approach which ensures the continuing relevance of constitutional documents to the governance of society without the necessity of resorting to the onerous processes of constitutional amendment.

 

46.       The proper approach to constitutional interpretation is encapsulated by the Privy Council’s celebrated statements in Edwards that the Constitution Act, 1867 “planted in Canada a living tree capable of growth and expansion within its natural limits” and that courts must be careful not to “cut down the provision of the Act by a narrow and technical construction, but rather [must give the Act] a large and liberal interpretation.”  With respect to the division of powers in ss.91 and 92, the Supreme Court of Canada has ruled that the various heads of power must therefore be interpreted as referring to topics about which Parliament and the Legislatures can legislate, as opposed to descriptions that are determinative of the possible content of said legislation.  Moreover, the interpretation of the subjects in ss.91 and 92 must be done progressively, with a view to contemporary social realities and values.  The Supreme Court of Canada has consistently rejected any suggestion that the heads of power have an inherent, trans-historical and/or fixed meaning.  As such, the original intent of the drafters of the Constitution may be, as Justice Beetz stated for a unanimous Supreme Court of Canada in Martin Service Station, “a starting point which may prove helpful in ascertaining the nature of a given legislative competence... [but] it is seldom conclusive as to the scope of that competence for legislative competence is essentially dynamic.”  Citing this ruling in Martin Service Station, Justice Dickson (as he then was) in Ellett Estate held that “there is nothing static or frozen, narrow or technical, about the Constitution of Canada” and specifically ruled that, in interpreting the scope of legislative competence under ss.91 and 92, the categories existing in 1867 are “of little, other than historic, concern.”

Edwards v. Canada, [1930] A.C. 114 at 136-137 (P.C.); Reference Re Regulation and Control of Radio Communication, [1931] S.C.R. 541 at 546; Reference Re Alberta Bill of Rights Act, [1946] 3 W.W.R. 772 at 778; Martin Service Station v. MNR, [1977] 2 S.C.R. 996 at 1006;  B.C. v. Ellett Estate, [1980] 2 S.C.R. 466 at 478-479; P. Hogg, Constitutional Law of Canada, Looseleaf edition (Toronto: Carswell, 1977) at 15-44 to 15-45 and 57-8

 

47.       We submit that a proper application of this large, liberal  and progressive approach to the interpretation of s.91(26) yields a conclusion that is at odds with the chambers judge’s finding that the word “marriage” therein refers only to heterosexual unions.  It is noteworthy that the Respondents Attorney General of Canada and Attorney General of British Columbia both agree with the Appellants’ position that Parliament has the exclusive legislative authority, pursuant to s.91(26), to enact a statute recognizing the validity of same-sex marriage.

 

48.       Based on all of the above, we submit that the chambers judge erred when he concluded that the infringement of Charter rights in this case is “justified by the Constitution itself.”

            Reasons for judgement, at paragraph 199

 

E.        The Infringement of Charter Rights is Not Justifiable Under the Oakes Test

49.       The chambers judge also erred in his alternative conclusion that the rights infringement is justifiable pursuant to a traditional Oakes analysis under s.1 of the Charter. It is trite law that the onus of justifying a limitation on Charter rights and freedoms rests with the party seeking to uphold the limitation, in this case, the Respondent Attorney General of Canada (hereafter “AGC”).  It is important to recognize at the outset that, since this case concerns a challenge to a common law rule, the s.1 analysis does not call for the kind of deference that is sometimes appropriate when legislation is impugned.  As then Chief Justice Lamer stated in R. v. Robinson, “while decisions of our legislatures may be entitled to judicial deference under s.1 as a matter of policy, such deference is not required where we are being asked to review a law that we as judges have established.”

            R. v. Robinson, [1996] 1 S.C.R. 683 at 708-709

 

50.       In order to satisfy the first step in the s.1 inquiry, the AGC must demonstrate that the objective of the bar against same-sex marriage is sufficiently pressing and substantial to warrant overriding constitutionally protected rights and freedoms.  The Court cannot simply accept the AGC’s characterization of the objective, but rather must scrutinize the proffered objective(s) in an effort to identify the genuine purpose of the impugned restrictive measure.  Moreover, before the Court can find that the objective is pressing and substantial, it must conclude that the objective is consistent with the principles and values of a free and democratic society, including respect for human dignity, enhancing diversity, the promotion of equality, the accommodation of a wide variety of beliefs, and respect for the personal decisions of citizens.

R. v. Oakes, [1986] 1 S.C.R. 103 at 136; R v. Big M Drug Mart Ltd, [1985] 1 S.C.R. 295 at 336 and 352; R v. Morgentaler, [1988] 1 S.C.R. 30 at 164-167 and 161;  Andrews v. Law Society of B.C., [1989] 1 S.C.R. 143 at 171; R. v. Keegstra, [1990] 3 S.C.R. 697 at 736 and 756;  M. v. H., [1999] 2 S.C.R. 3 at 67-70

 

51.       The chambers judge erred in accepting the AGC’s assertion that the bar against same-sex marriage flows from the principal purpose of marriage itself, namely “to provide a societal structure for the procreation of children in order to perpetuate Canadian society.”  The historical record does not support the contention that fostering procreation is the purpose of marriage.  It was only relatively recently, when same-sex couples began to advance claims for equal recognition of their conjugal relationships (including equal access to marriage), that some Courts began to identify procreation as the principal purpose of marriage (as a way of rationalizing the exclusion of same-sex partners).  Earlier Courts, which developed the common law rules regarding the essential validity of marriage, did not regard procreation as the purpose of marriage.

            Reasons for judgement, at paragraph 188

 

52.       For example, there are numerous cases in which Courts held that a heterosexual marriage was valid and could not be annulled despite the fact that one spouse refused to have sexual intercourse, was infertile, or insisted on using contraceptives when having sexual intercourse.  It can reasonably be inferred from this jurisprudence that British and Canadian Courts have not considered procreation to be the sole or primary purpose of the matrimonial contract.  The same inference can be drawn from the annulment cases involving husbands who were unable to consummate their marriage due to impotence resulting from advanced age.  Canadian courts have consistently ruled that such marriages are understood to be for the purpose of “companionship” and are therefore valid and not voidable, notwithstanding the spouses’ inability to have sexual intercourse and, evidently, their inability to procreate.

L. v. L. (1922), 38 T.L.R. 697; Hale v. Hale, [1927] 2 D.L.R. 1137 at 1138-1139 (Alta S.C.), aff’d [1927] 3 D.L.R. 481 (C.A.) at 482; Tice v. Tice, [1937] O.R. 233 (H.C.) at 239, aff’d [1937] 2 D.L.R. 591 (C.A.); Heil v. Heil, [1942] S.C.R. 160;  W. v. W., [1950] 1 W.W.R. 981 (B.C.C.A.) at 985-986; D. v. D. (1973), 3 O.R. 82 (H.C.J.); Norman v. Norman (1979), 9 R.F.L. (2d) 345 (Ont. U.F.C); Foster v. Foster, [1953] 2 D.L.R. 318 (B.C.S.C.)

 

53.       Indeed, in the 1948 case of Baxter v. Baxter, the House of Lords explicitly held that procreation is not the principal end of marriage.  In that case, a man sought to annul his marriage on the ground of non-consummation because his wife refused to have sexual intercourse with him unless he used a condom. The Court denied the annulment, relying on the following passage from Lord Stair’s Institutions:

So then, it is not the consent of marriage as it relateth to the procreation of children that is requisite; for it may consist, though the woman be far beyond that date; but it is the consent, whereby ariseth that conjugal society, which may have the conjunction of bodies as well as of minds, as the general end of the institution of marriage, is the solace and satisfaction of man.

Baxter v. Baxter, [1948] A.C. 274 at 286 and 289 (HL)

 

54.       Apart from the historical record, it is apparent that the contemporary purpose of marriage is not to foster procreation, but rather to provide legal protection and support to those couples who are willing to make a mutual commitment to share their lives.  By providing a variety of statutory benefits and protections, as well as less tangible benefits such as social approbation and community support, marriage as a legal institution encourages individuals to commit to lasting relationships in which they agree to be responsible for their conjugal partner, fostering emotional and economic security.  As the Supreme Court of Canada noted in Moge v. Moge,

...marriage and the family provide for the emotional, economic, and social well-being of its members.  It may be the location of safety and comfort, and may be the place where its members have their most intimate human contact.  Marriage and the family act as an emotional and economic support system as well as a forum for intimacy.  In this regard, it serves vital personal interests, and may be linked to building a “comprehensive sense of personhood.”

            Moge v. Moge, [1992] 3 S.C.R. 813 at 848

 

55.       Allowing same-sex couples to marry is entirely consistent with these contemporary purposes of marriage.  As noted in the introductory paragraphs in this factum, the Appellant couples wish to marry for a variety of reasons, but common among them is a desire to express, share and celebrate their love and commitment to each other in a manner that is respectfully acknowledged and supported by the state.  To deny them the legal status, recognition, protection, supports and obligations  afforded to married heterosexual couples is contrary to the purposes of marriage.

 

56.       As the Law Commission of Canada stated in its recent report:

[The state does not reserve] marriage to procreation and the raising of children. People may marry even if they cannot or do not intend to have children. The purposes that underlie contemporary state regulation of marriage are to provide an orderly framework in which couples can express their commitment to each other and voluntarily assume a range of legal rights and obligations...

[T]he argument that marriage should be reserved to heterosexual couples cannot be sustained in a context where the state’s objectives underlying contemporary state regulation of marriage are essentially contractual ones, relating to the facilitation of private ordering. There is no justification for maintaining the current distinctions between same-sex and heterosexual conjugal unions in light of current understandings of the state’s interests in marriage. The secular purpose of marriage is to provide an orderly framework in which people can express their commitment to each other, receive public recognition and support, and voluntarily assume a range of legal rights and obligations.

Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships (Ottawa, December 21, 2001), chapter 4, pp.16-17

 

57.       The Appellants submit that procreation is not the true purpose of the bar against same-sex marriage, but rather is a convenient pretext used to rationalize discrimination against lesbians, gays, and bisexuals.  The real but unarticulated (and perhaps even unconscious) purpose of the impugned bar is to entrench and preserve the exclusive privileged status of heterosexual conjugal relationships in society.  In that regard, this case is analogous to Loving v. Virginia, in which the United States Supreme Court struck down a law that prohibited interracial marriages, stating that “[t]here is patently no legitimate overriding purpose independent of invidious racial discrimination which justifies this classification.

                Loving v. Virginia, 388 U.S. 1 at 11 (1967)

 

58.       The true purpose of the bar against same-sex marriage is simply to endorse the discriminatory belief that heterosexual relationships are superior to same-sex relationships, which is inconsistent with the values of a free and democratic society.  Thus this objective cannot be construed as “pressing or substantial”, because to do so would permit the impugned bar to be justified on the very basis upon which it is being attacked for violating Charter rights and freedoms.

Big M Drug Mart Ltd. v. Canada, [1985] 1 S.C.R. 295 at 352-353; McKinney v. University of Guelph,[19990] 3 S.C.R. 229 at 303; Egan v. Canada, [1995] 2 S.C.R. 513 at 558 and 616

 

59.       In the alternative, if this Court finds that fostering procreation is the purpose of the bar against same-sex marriage and that it is a pressing and substantial objective, we submit that the impugned bar is nevertheless unjustifiable under s.1 of the Charter because it does not constitute a reasonable limit on Charter rights and freedoms.  Any law that infringes Charter rights will only be upheld pursuant to s.1 if the party defending the impugned law demonstrates that the rights infringement is “reasonable”.  As Justice McLachlin (as she then was) stated in RJR-MacDonald, the “question is not whether the measure is popular or accords with the current public opinion polls.  The question is rather whether it can be justified by application of the processes of reason.”

RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199 at 328

 

60.       In order to demonstrate reasonableness, the AGC is required to satisfy all three components of the Oakes “proportionality test”, beginning with the “rational connection” criterion.  Specifically, the AGC must demonstrate that the impugned bar against same-sex marriage is “carefully designed to achieve” the procreation objective.  As the Supreme Court of Canada stated in Oakes, in order to survive s.1 scrutiny, the restrictive measure “must not be arbitrary, unfair or based on irrational considerations.”  It is important to recall that the requisite rational connection must be demonstrated through evidence and on the bases of reason and logic, not on the basis of stereotypical assumptions that have no evidentiary foundation.

R. v. Oakes, [1986] 1 S.C.R. 103 at 139; RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199 at 339; Egan v. Canada, [1995] 2 S.C.R. 513 at 610; Miron v. Trudel, [1995] 2 S.C.R. 418 at 478-79

 

61.       Assuming, arguendo, that the purpose of marriage is to foster and provide institutional support for adult relationships that allow for the possibility of procreation and child-rearing, we submit that the bar against same-sex marriage is not rationally connected to this objective.  It is simply untenable to suggest that granting same-sex couples the freedom to marry would either reduce the number of children conceived by heterosexual couples or diminish the quality of care with which they are raised.  Furthermore, contrary to the prevalent stereotype that same-sex couples do not parent, the evidence in this case demonstrates that many same-sex couples (including some of the Appellant couples) have and raise children through a variety of reproductive and parenting arrangements, which are also employed by heterosexual partners.  Both same-sex and heterosexual couples foster children, adopt children, conceive children by means of assisted conception and surrogacy, and form blended families with children from previous relationships.  The fact that many heterosexual couples also conceive children through heterosexual intercourse is hardly a rational basis for distinguishing between all heterosexual and same-sex couples by granting only the former access to the institutional supports of marriage.  The purported procreation objective is simply not rationally furthered by excluding same-sex couples from the institution of marriage.

                Affidavits of Arnup, A.R. III, pp.476-480;  Stacey, A.R. IV, p.608 and Exhibit “B” thereto, p.624; Eichler, A.R. I, p.17; Peacock, A.R. I, p.156; Roberts, A.R. I, pp.134-136, p.138; Denny, A.R. I, pp.134-137; Chambers, A.R. I, p.117

 

62.       The impugned bar not only fails to advance the procreation objective, it actually impedes the achievement of that objective, because it excludes from marriage same-sex couples who are raising children, thereby denying their families access to the institutional support that marriage is supposed to provide.  It is noteworthy that a number of jurisdictions in Canada (including British Columbia) permit same-sex couples to adopt children.   It is absurd that same-sex partners who co-parent a child can each enjoy a legally recognized relationship with their child (i.e., parental status), yet they are denied a legally recognized relationship with each other (i.e., marital status).

Adoption Act, R.S.B.C., 1996, c.5, s.5(1); Miscellaneous Statutes Amendment Act, S.A. 1999, c.26, s.4, s.25; The Adoption Act, S.S. 1998, c.A-5.2, ss.2, 17, 23; Re A (Adoption), [1999] A.J. No. 400 (QB) (QL); The Miscellaneous Statutes (Domestic Relations) Amendment Act, 2001 (no. 2), S.S. 2001, c.51, s. 2; An Act to amend certain statutes because of the Supreme Court of Canada decision in M. v. H., S.O. 1999, c.6, s.146; Re K, (1995) 23 O.R. (3d) 679; S.C.M. v. N.C.J.,[2001] N.S.J. No.261 (N.S.S.C. - Family Division) (QL)

 

63.       The arbitrariness of the bar against same-sex marriage (in relation to the procreation objective) is also apparent from the fact that the common law does not exclude from marriage heterosexuals who do not or cannot have children.  Heterosexual couples are permitted to marry even if they have no intention or biological ability to procreate.2

64.       Thus the bar against same-sex marriage fails the rational connection test because it is both overinclusive (it allows non-procreative heterosexuals to marry) and underinclusive (it denies same-sex parents and intended-parents the right to marry).

M. v. H.,  [1999] 2 S.C.R. 3 at 75-76

 

65.       The bar against same-sex marriage also constitutes an excessive impairment of equality rights.  According to Supreme Court of Canada jurisprudence, the “minimal impairment” criterion of the Oakes test imposes a particularly onerous burden on the Government in cases where a common law rule (as opposed to a statutory provision) has been found to violate Charter rights.  In R. v. Swain, then Chief Justice Lamer stated,

it is my view that the Oakes analysis requires somewhat different considerations when, as here, a judge-made rule is being challenged under the Charter. /  .... [I]n cases where a common law, judge-made rule is challenged under the Charter, there is no room for judicial deference. /  .... In other words, the least intrusive common law rule which will attain the objectives without disproportionately affecting rights must be adopted by the Court.

R. v. Swain, [1991] 1 S.C.R. 933 at 983-984 (emphasis added)

 

66.       In this case, the restriction on the freedom of same-sex couples to marry does not constitute the “least intrusive” means by which the state could achieve the purported goal of providing institutional support to couples who have and raise children.  On the contrary, this goal could easily be advanced without denying same-sex couples the freedom to marry.  This is not a case in which the state is required to balance competing rights and interests.  The rights and interests of heterosexuals would in no way be affected by granting same-sex couples the freedom to marry.  The so-called “threat” to the institution of marriage that underlies the AGC’s and Respondent Intervenors’ positions was raised  in Egan and it prompted this pointed response from Justice Iacobucci:

[I]t eludes me how according same-sex couples the benefits flowing to opposite-sex couples in any way inhibits, dissuades or impedes the formation of heterosexual unions.  Where is the threat? In the absence of such a threat, the denial of the s.15 rights of same-sex couples is anything but proportional to the policy objective of fostering heterosexual relationships.  In dissenting reasons in Mossop, ... L’Heureux-Dubé J. made the following observation, which I believe to be on point: “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.”

Egan v. Canada, [1995] 2 S.C.R. 513 at 616

 

67.       Moreover, contrary to the assertion of the Respondent Intervenors, freedom of religion would not be jeopardized by legally sanctioning same-sex marriage.  No religious body would be compelled to solemnize a same-sex marriage against its wishes and all religious people, of any faith, would continue to enjoy the freedom to hold and espouse their beliefs, including (where applicable) the belief that same-sex relationships are immoral and undeserving of marital status. As the Law Commission of Canada noted in its recent report,

civil recognition of same-sex marriage does not alter the right of religious denominations to perform wedding ceremonies without state interference according to the values and traditions of their faith.... As is the case now, some religious institutions would choose to sanctify same-sex unions as marriages, while others would not. As it does now, the state would recognize the marriage performed during a religious ceremony by a person authorized to do so under provincial and territorial marriage statutes. The preconditions for each type of marriage, religious and secular, could differ as it often does today. For example, as mentioned earlier, the Roman Catholic Church does not permit divorce and will not perform a religious ceremony if one of the intending spouses has been divorced. Nonetheless, Canadian law permits both a civil divorce and a civil remarriage, whatever the religion of the parties. This is a result that should be celebrated in a society that values religious pluralism.

Law Commission of Canada, Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships (Ottawa, December 21, 2001),chapter 4, p.18

 

68.       The minimal impairment criterion cannot be satisfied by reference to the recent legislative amendments that have extended spousal benefits and obligations to cohabiting same-sex partners.  Although lesbian and gay couples are now entitled to most of the statutory incidents of marriage after a short period of cohabitation, the conferral of these spousal rights and responsibilities does not mitigate the substantial infringement of equality rights that arises from the denial of access to marriage itself, with all the intangible social privileges that it affords.  As Justice L’Heureux-Dubé remarked in Miron v. Trudel,

[t]he decision of whether or not to marry ... can be as fundamental, as momentous, and as personal as a choice regarding, for instance, one’s citizenship or even one’s religion.  Although certain rights and obligations flow from each one of these three diverse choices, it does not render any of these choices justice to reduce them to a question of contract.  I highly doubt, for instance, that people enter the institution of marriage because it strikes them as offering an attractive package of contractual rights and obligations.

Miron v. Trudel, [1995] 2 S.C.R. 418 at 471; see also Brown v. Board of Education, 347 U.S. 483 (1954).

 

69.       The AGC’s suggestion that our rights are minimally impaired because we are merely denied the “label” of marriage is specious.  As the chambers judge recognized, the so-called  label of being married is “accompanied by immediate community recognition and social status.”  He further held that “[o]pposite sex couples who marry acquire immediate social approbation”.  The bar against same-sex marriage not only limits our individual liberty by restricting the range of relationship options available to us (thereby denying us the dignity inherent in the autonomy to choose for ourselves whether we wish to marry), it specifically denies us access to the most respected and highly regarded form of conjugal relationship in our society (thereby conveying a sinister message that we are not worthy of the elevated social status afforded to married heterosexuals).  The significance of marital status to the Appellant couples is eloquently expressed by Wendy Young in the following excerpt from her affidavit, in which she discusses her commitment ceremony with her life partner Tess Healy.

The ceremony was a wonderful and transformative experience.  But we knew in our hearts that it did not confer the status of legal marriage, and that it could only convey a partial feeling of validation.  It could be only an incomplete approximation of our goal of affirming and validating our relationship, so long as legal status is denied to us.  It is simply not possible, at the end of the day, to make something real which the law denies is real.  We wanted to call it a wedding, and our friends wanted to celebrate it as such, but we all knew that we could not.  The inability to obtain that one final step of legal recognition was a bitter reminder on an otherwise joyous occasion of society’s resistance to our lives, love and existence.”

                                Affidavit of Wendy Young, A.R. I, at p.122; Reasons for judgement, paragraphs 128 and 165

 


70.       In addition to the above, the bar against same-sex marriage also fails s.1 scrutiny because there is no evidence that it has any salutary effects, let alone effects that are sufficiently beneficial to outweigh its deleterious effects.  Thus the third criterion of the Oakes “proportionality” test has not been met.

RJR-MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199 at 327-328

 

71.       The deleterious effects of the impugned bar against same-sex marriage are numerous and severe.  The restriction against same-sex marriage perpetuates and reinforces harmful stereotypes by implying that lesbians, gays and bisexuals are incapable of forming lasting, loving, mutually supportive and committed relationships equivalent to those of married heterosexual couples.  By reinforcing these negative societal perceptions, the bar against same-sex marriage has the effect of making us feel as though our relationships are not valued and are judged less worthy than heterosexual relationships.  It is hurtful and demeaning because it impugns our ability to love and to be committed partners.  It therefore constitutes an affront to the dignity of all lesbians, gays, and bisexuals, regardless of whether we are currently in a relationship, or whether we would personally choose to marry were we given the freedom to do so.

“Marriage provides a framework which underscores for friends and family the value and priority attached to the relationship.  For many, including my family, a relationship is not seen as ‘real’ or ‘serious’ unless you are married. Being a gay couple holds no value for a great number of my relatives.  They do not see it as meaningful, long-term or committed.  This has a great deal to do with the fact that they tend to equate my relationship with David to the casual dating phase of heterosexual romances. Getting married solidifies a relationship in their eyes... / Denying us the right to marry prevents us from being able to fully express and celebrate our love.  We will always be seen as second rate and same-sex relationships will continue to be played down and trivialized by those who are intolerant.  In effect this just gives them an excuse to continue to discriminate, an excuse that is  supported by the law.”

Affidavit of Shane McCloskey, A.R. I, at pp.152-153

 

72.       For those same-sex couples who wish to marry, the bar represents a rejection of their personal aspirations, the non-recognition of their personhood, and the denial of their dreams.  Without equal access to the institution of marriage, the Appellants’ ability to celebrate their love and their lives on equal terms with their heterosexual counterparts is undermined.

“Who doesn’t dream, when they are young, about meeting the right person, falling in love and getting married? Once I realized I was gay, I thought that dream would be forever denied to me. I never dreamed I could marry a man, because all my life marriage was reserved for heterosexuals. In fact, the legal denial of equal marriage reinforced the beliefs that had been ingrained in me that being gay was something wrong and shameful. I believe I would have come to terms with my homosexuality sooner if marriage were a legal possibility. Gays and lesbians deserve the right to share in that dream.”

Affidavit of Shane McCloskey, A.R. I, at p.154

 

73.       Withholding access to the privileged status that marriage affords also undermines our relationships with our families and loved ones, and limits our recognition as equal members of society in the eyes of employers, insurers, medical authorities, and others with whom we routinely interact.  Moreover, our children are denied access to the social approbation, affirmation, and security of having married parents and their families are thereby stigmatized.

If Robin and I had been able to get married, I believe that it would have been easier for our children because the relationship would have felt more official in their own minds, and they might have been more comfortable talking about it with friends.  I also believe that we would have been more readily accepted by my family and by our community.  Same-sex marriage is a first step in changing the climate of public opinion.  This change is also fundamentally important for the children of new generations.”

                        Affidavit of Diana Denny, A.R. I, at p.129

 

“Had we been able to marry, ...we believe that having the recognition of Canadian law behind us would have made it easier for our children to deal with their peers, and it would have freed our energy to be totally out of the closet, with the safety and comfort of the backing of the law behind us, as it is for heterosexual families who are able to take their status for granted.”

                Affidavit of Robin Roberts, A.R. I, at p.137

 

74.       Moreover, as noted above, the impugned bar has deleterious effects on the dignity of all lesbians, gays and bisexuals, irrespective of whether we wish to marry or not.  For a community that has historically been criminalized, subjected to indefinite incarceration as dangerous offenders and to forcible psychiatric treatment, denied the right to immigrate, and denied the protection of human rights legislation and of hate propaganda laws, the denial of the freedom to marry represents one more indignity visited upon us in a history of exclusion and non-recognition.

 

PART 4  – NATURE OF THE ORDERS SOUGHT

75.       The Appellants seek:

(1)        a declaration that marriage is not limited by the common law to the union of opposite-sex spouses; or

 

(2)        in the alternative, a declaration pursuant to s.52 of the Constitution Act, 1982 that the common law bar against same-sex marriage is of no force or effect because it violates rights and freedoms guaranteed by ss.2, 7 and 15 of the Charter and does not constitute a reasonable and demonstrably justifiable limit on those rights within the meaning of s.1 of the Charter; and

 

(3)        an order in the nature of mandamus requiring the issuer of marriage licenses in British Columbia to issue marriage licenses to the Appellant couples and to any other same-sex couples who otherwise meet the legal requirements for capacity to marry; and

 

(4)        an order in the nature of prohibition, preventing the issuer of marriage licenses from refusing to issue licenses to the Appellant couples or to any other same-sex couples, solely because the applicants for the marriage license are of the same sex; and

 

(5)        an order that the Appellants be granted increased costs in this Court and in the Court below.

 

ALL OF WHICH IS RESPECTFULLY SUBMITTED,  March 28, 2002,

 

                                                                                                                                                           


                 Joseph Arvay                                                                      Cynthia Petersen

             ARVAY FINLAY                                                    SACK GOLDBLATT MITCHELL



1Rules regarding the prohibited degrees of consanguinity and the minimum age of consent for marriage were initially developed at common law, but were eventually altered by statute.  The other rules relating to the essential validity of marriage continue to be governed exclusively by the common law.

2  The AGC suggested in the Court below that the impugned bar against same-sex marriage was developed based on sexual orientation, rather than on actual ability to procreate, because courts wanted to avoid intrusive inquiries about the fertility of heterosexual spouses.  This explanation is belied by the abundance of cases in which courts have not hesitated to probe, in intimate and incredibly invasive detail, the sexual capacities and private sexual practices of married spouses.  See, for example, Hale v. Hale, [1927] 2 D.L.R. 1137 at 1138-1139 (Alta S.C.), aff’d [1927] 3 D.L.R. 481 (C.A.) at 482; Tice v. Tice, [1937] O.R. 233 (H.C.) at 239, aff’d [1937] 2 D.L.R. 591 (C.A.);  Szrejher v. Szrejher, [1936] O.R. 250 (H.C.); S. v. S. (No.2), [1962] 3 All E.R. 55 (C.A.); D. v. D. (1973), 3 O.R. 82 (H.C.); Aisaican v. Kahnapace, [1996] S.J. No. 539 (Sask. Q.B) (Q.L.)