Citation:

EGALE Canada Inc. et al. v. Att. Gen. of Canada et al.

Date:

20011002

 

 

2001 BCSC 1365

Docket:

L002698

 

Registry:  Vancouver

 

IN THE SUPREME COURT OF BRITISH COLUMBIA

 

 

BETWEEN:

EGALE CANADA INC.

DAVID SHORTT AND SHANE McCLOSKEY

MELINDA ROY AND TANYA CHAMBERS

LLOYD THORNHILL AND ROBERT PEACOCK

ROBIN ROBERTS AND DIANA DENNY

WENDY YOUNG AND MARY THERESA HEALY

PETITIONERS

AND:

THE ATTORNEY GENERAL OF CANADA

THE ATTORNEY GENERAL OF BRITISH COLUMBIA and

THE DIRECTOR OF VITAL STATISTICS FOR BRITISH COLUMBIA

 

RESPONDENTS

 

AND:

Docket:  L003197

BETWEEN:

DAWN BARBEAU AND ELIZABETH BARBEAU

PETER COOK AND MURRAY WARREN

JANE HAMILTON AND JOY MASUHARA

PETITIONERS

AND:

THE ATTORNEY GENERAL OF BRITISH COLUMBIA

and THE ATTORNEY GENERAL OF CANADA

RESPONDENTS

 

 

 

REASONS FOR JUDGMENT

 

OF THE

 

HONOURABLE MR. JUSTICE PITFIELD

 


 

Counsel for the Petitioners:

Action No. L002698

 

 

 

Counsel for the Petitioners:

Action No. L003197

 

Cynthia A. Petersen

Joseph J. Arvay Q.C.

Kathryn J. Chapman

 

 

barbara findlay

Kathleen Lahey

 

Counsel for the Respondents:

The Attorney General of B.C. and

Director of Vital Statistics/B.C.

 

Counsel for the Respondents:

The Attorney General of Canada:

 

 

 

 

Counsel for the Intervenors:

Interfaith Coalition for Marriage

 

 

B.C. Coalition for Marriage/Family

 

Harvey Groberman, Q.C.

Leah Greathead

 

 

Judith M. Bowers, Q.C.

Wendy Divoky

Steven Postman

Keitha Richardson

 

 

Iain Benson

Peter R. Jervis

 

 

 

D. Geoffrey Cowper, Q.C.

Cindy Silver

 

 

 

Date and Place of Trial:

 

July 23-27, 2001

July 30 – August 3, 2001

 

 

Vancouver, B.C.

 

 

 

 

 


I N D E X

 

 

 

 

Para #

I.   Introduction . . . . . . . . . . . . . . . . . . .

 [1]

 

 

II.  Summary of Opinion and Disposition. . . . . . . .

 [8]

 

 

III. The Petitioners in Profile. . . . . . . . . . . .

[14]

          David Shortt and Shane McCloskey

[15]

          Melinda Roy and Tanya Chambers

[18]

          Lloyd Thornhill and Robert Peacock

[21]

          Robin Roberts and Diana Denny

[24]

          Wendy Young and Mary Theresa Healy

[27]

          Dawn Barbeau and Elizabeth Barbeau

[31]

          Peter Cook and Murray Warren

[36]

          Jane Hamilton and Joy Masuhara

[39]

 

 

IV.  The Evolution of Parallelism. . . . . . . . . . .

[47]

 

 

V.   "Marriage" and the Common Law. . . . . . . .  . .

[71]

 

 

VI.  Can the Court Change the Common Law?. . . . . . .

[89]

 

 

VII. The Constitutional Question. . . . . . . . . . . .

[98]

 

 

VIII.     "Marriage" and the Charter of Rights. . . . . . .

[125]

          Freedom of Expression

[131]

          Freedom of Association

[134]

          The Right to Mobility

[140]

          The Right to Liberty and Security

 

            of the Person

[144]

          Discrimination on the Basis of

 

            Sexual Orientation

[156]

 

 

IX.  Is the Infringement of Equality Rights

 

     Saved by Section 1 of the Charter? . . . . . . .

[181]

 

 

X.   Costs. . . . . . . . . . . . . . . . . . . . . .

[216]

 

 

 

 


I.   Introduction

[1]         The petitioners, other than EGALE Canada Inc., are same-sex couples who wish to marry.  Each couple applied to the British Columbia Director of Vital Statistics for a marriage licence.  Each request was refused on the basis that the common law governing the question of capacity to marry did not recognize the marriage of two persons of the same sex and, because the capacity to marry was within federal constitutional jurisdiction, only the federal government could enact legislation to redefine marriage or change the rules on capacity.

[2]         The petitioners apply for a declaration that the marriage of two persons of the same sex is not prohibited at common law or by statute; a declaration that the Director is entitled to issue marriage licences to same-sex couples; and an order requiring the Director to issue marriage licences to them.  In the alternative, the petitioners apply for a declaration that any common law or statutory provision prohibiting the marriage of same-sex couples infringes, denies and is inconsistent with the rights and freedoms guaranteed by the Canadian Charter of Rights and Freedoms and is, therefore, of no force and effect.

[3]         It is obvious that the petitioners seek state, and therefore public, recognition of the legitimacy of same-sex relationships.  The individual petitioners are supported by EGALE Canada Inc., an organization engaged in the national pursuit of equality for gay and lesbian individuals.

[4]         The Attorney General of Canada, to whom notice of the constitutional question was properly provided, opposes the petitions saying that the common law does not permit persons of the same sex to be married and does not infringe any Charter right.

[5]         The Attorney General of Canada is supported by the Interfaith Coalition and the B.C. Coalition for Family and Marriage who were granted status as intervenors in the proceeding.

[6]         The Attorney General of British Columbia endorses the view that, at common law, marriage is restricted to persons of opposite sex and otherwise takes no position with respect to the relief claimed in the petitions.

[7]         At the outset, I wish to express my appreciation to counsel for their thorough analysis and submissions in relation to this complex and important issue.

II.  Summary of Opinion and Disposition

[8]         Under Canadian law, marriage is a legal relationship between two persons of opposite sex.  The legal relationship does not extend to same-sex couples.

[9]         Marriage was defined by common, or judge-made, law.  Judges should only change the common law in incremental steps. A change to define marriage as the legal union of two individuals, regardless of sex, is not incremental.  The change would have broad legal ramifications and would require, at the least, rules to govern the formation and dissolution of same-sex unions.  Any permitted changes to the common law of marriage must be made by legislation.

[10]    Parliament may not enact legislation to change the legal meaning of marriage to include same-sex unions.  Under s. 91(26) of the Constitution Act, 1867, Parliament was given exclusive legislative jurisdiction over marriage, a specific kind of legal relationship.  By attempting to change the legal nature of marriage, Parliament would be self-defining a legislative power conferred upon it by the Constitution rather than enacting legislation pursuant to the power.  Parliament would be attempting to amend the Constitution without recourse to the amendment process provided by the Constitution Act, 1982.  Alternatively, Parliament would be attempting to enact legislation in respect of civil rights exclusively within the legislative authority of the province.

[11]    “Marriage”, as a federal head of power with legal meaning at confederation, is not amenable to Charter scrutiny.  One part of the Constitution may not be used to amend another.  Alternatively, if the legal relationship of “marriage” is subject to Charter scrutiny, its legal character does not infringe the petitioners’ fundamental freedoms of expression or association, their mobility rights or their rights of liberty and security of the person, but does infringe their equality rights.

[12]    The infringement of the petitioners’ equality rights is a reasonable and demonstrably justified limit in a free and democratic society and is saved by s.1 of the Charter.

[13]    For these reasons, details of which follow, the petitions are dismissed.

III. The Petitioners in Profile

[14]    The affidavits filed by the petitioners in these proceedings provide evidence of their individual circumstances and are not disputed.  The profiles are informative.

     David Shortt and Shane McCloskey

[15]    David Shortt, age 26, is a student of computer programming and digital arts.  Shane McCloskey, age 27, is employed as a market researcher.  These individuals met in July 1996 and have lived together since January 1997.  They presently reside in Vancouver.

[16]    Mr. Shortt says he and Mr. McCloskey want to get married because they love each other and they see marriage as an opportunity to celebrate and legitimize their relationship.  He says they have been loving, loyal and committed since the day they met and marriage will represent a recognition of the value of their relationship and the freedom to fulfil their dreams. 

[17]    Mr. McCloskey says that he regards marriage as a public declaration of the couple's love and commitment for each other.  He says their love, commitment and respect for one another are no less than that of his brother for his wife, or that of his sister for her husband.

Melinda Roy and Tanya Chambers

[18]    Melinda Roy, age 31, is employed in the movie theatre business.  Tanya Chambers, age 28, is a cashier and customer service representative employed by a drug store chain.  They met in 1992 and have lived together since 1995.  Some time prior to meeting in 1992, Ms. Roy terminated her engagement to a man.  Ms. Roy and Ms. Chambers presently reside in Vancouver.

[19]    Ms. Roy and Ms. Chambers have exchanged rings.  They wish to marry and have children.

[20]    Ms. Chambers says the couple has planned a commitment ceremony that will help to confirm, publicly, the way they feel about each other.  Ms. Chambers says that as long as legal marriage is denied to them, they will always feel there is something missing.  Her view is that government and Canadian society do not value their relationship equally with the relationships of opposite-sex couples.

Lloyd Thornhill and Robert Peacock

[21]    Lloyd Thornhill, age 58, is employed as a building manager.  Robert Peacock, age 53, is employed as a laundry aide.  Their relationship has endured for a period of 32 years.  They live in Vancouver.

[22]    Mr. Thornhill recounts his marriage to a woman in 1963, describes the children of their marriage including a daughter of their own and a son by his wife's former marriage whom Mr. Thornhill adopted, and describes his separation from his wife in 1968.  During the 32 years Mr. Thornhill and Mr. Peacock have been together they have shared their lives, their plans and their finances.  They have purchased things together and have never owned anything separately.  They have always had joint bank accounts, they own a home together, and they leave all their possessions to each other in their wills.  Mr. Thornhill says that because of the length and strength of their relationship, marriage is somewhat less important than it was earlier in their relationship.  He says that "thirty-two years seems like an awfully long time to be engaged".  If able, they will marry.

[23]    Mr. Peacock recounts the fact that he married a woman in 1968 for the sake of his daughter born to the couple the previous year.  He recounts the couple's separation one month after marriage.  His view is that being able to legally marry would simply allow him and Mr. Thornhill to gain legal recognition of the reality of their relationship.  He believes that denying them the right to marry sends a message that their relationship is less deserving of recognition just because he and Mr. Thornhill are gay.

Robin Roberts and Diana Denny

[24]    Robin Roberts, age 53, is employed as a teacher of English as a second language.  Diana Denny, age 58, is employed as a geriatric nurse.  Their relationship has endured since 1984.  They live in Victoria.  They wish to marry.

[25]    Ms. Denny recounts her marriage to a man in 1962, the birth of their daughter and two sons, the couple's separation in 1984, and the commencement of her life and that of the children together with Ms. Roberts and her son in the same year.

[26]    Ms. Roberts recounts her marriage to her husband and their separation, the birth of a son and the circumstances under which the relationship with Ms. Denny began and the marriage to her husband ended.  She describes how she and Ms. Denny have made wills for the benefit of the children, how they acted as parent and step-parent to the children who are now adults, and how, together, they supported the family unit.

Wendy Young and Mary Theresa Healy

[27]    Wendy Young, age 39, is trained in speech, language and audiology and provides communication and technology support for children with severe communication problems in northern British Columbia.  Theresa Healy, age 47, is employed as director of a women's health research institute.  The couple has been living together since May 1999.  They reside in Prince George.  In September 1999, the couple held a commitment ceremony conducted by a priest during which vows and rings were exchanged.

[28]    Ms. Young is of the view that having the choice to legally marry and having the relationship recognized by government and society is important to her and would make her feel that she is no longer a second class citizen.

[29]    Ms. Healy recounts that she had an unmarried relationship with a man with whom she had two daughters.  The relationship commenced in 1970 and ended in 1975.  She remarried but that relationship ended in 1985.  She became involved in a lesbian relationship that endured for 11 years until 1997 when it ended.  The relationship with Ms. Young followed.

[30]    Ms. Healy recites her view that choosing not to marry when you can is one thing but to be denied the right to make that choice is another.  She describes herself as a human being with human aspirations and desires and the human need to build a relationship and a home.  She views marriage as an essential component of her aspirations.

Dawn Barbeau and Elizabeth Barbeau

[31]    Dawn Barbeau, age 36, is employed as an office manager for a mental health agency that provides counselling, support and education to deaf, hard of hearing, and deaf-blind individuals and their families.  Elizabeth Barbeau, age 38, is an educator who works as the director of a parenting education program directed to young parents.  Their relationship began in 1996.  They reside in Vancouver.

[32]    Barbeau is the original surname of neither individual.  They changed their respective surnames to Barbeau, the surname of one of Elizabeth’s ancestors, in order to reflect their family relationship.

[33]    Dawn Barbeau recognized that she was a lesbian in her late teenage years.  She and Elizabeth began living together in 1996.  In 1998 they celebrated their commitment to each other by having a wedding-like ceremony among family and friends.

[34]    The Barbeaus would like to conceive a child with donated sperm in the same manner that a heterosexual couple might do were the male infertile.  The couple has executed wills, health care directives and powers of attorney in order to provide as much protection as they can for themselves and children they might have.

[35]    Elizabeth Barbeau states that the central reason she wants to marry Dawn is that legal recognition brings with it a higher degree of community recognition.

Peter Cook and Murray Warren

[36]    Peter Cook, age 54, is a business analyst.  Murray Warren, age 56, is a teacher.  They live in Vancouver.  Their relationship has endured for a period of 29 years.  They are foster parents to two young men.

[37]    Mr. Cook was afflicted with polio at a young age.  He walks with the aid of crutches.  The relationship between Mr. Cook and Mr. Warren has been characterized by understanding, acceptance, support, empathy, care, reliability and commitment.

[38]    In addition to their work, Mr. Cook and Mr. Warren have been advocates on behalf of gays and lesbians opposing discrimination of all kinds.  Both were proponents of the amendments to provincial adoption laws that now permit same-sex adoption.

Jane Hamilton and Joy Masuhara

[39]    Jane Hamilton, age 46, is a writer.  She was married to, and divorced from, a man.  She has two daughters born in 1978 and 1981, respectively.  Joy Masuhara, age 54, is a family physician.  She married a man.  During the marriage Dr. Masuhara recognized her lesbianism and, with her husband's support and the support of a therapist, came to accept it.  The marriage ended in divorce. 

[40]    Ms. Hamilton and Dr. Masuhara have shared a relationship for almost 8 years.  Three years ago, Dr. Masuhara adopted Ms. Hamilton's children who were then ages 19 and 16. 

[41]    Dr. Masuhara works as a physician and does not hide her sexual orientation from colleagues, co-workers, students or patients.  Ms. Hamilton accompanies her to office parties.  They share all their financial resources notwithstanding a discrepancy in their incomes.  One of their daughters lives at home while she attends university.

[42]    Ms. Hamilton and Dr. Masuhara have made reciprocal wills, powers of attorney, living wills and medical directives.  They are the beneficiaries of each other's registered retirement savings plan and life insurance policies.  They share ownership of a home.  They share a car.

[43]    Dr. Masuhara and Ms. Hamilton want to marry because they have shared the last 7 years together.  They regard marriage as the next logical step and a celebration in which they should be able to participate.

[44]    The profiles portray a uniform pattern: couples who are ordinary citizens in ordinary jobs and walks of life who share children, friends, family, property, companionship, self and community responsibility, affection and commitment.  These traits are no different from the traits that are characteristic of marriages in our community.

[45]    The difference between these and heterosexual couples is that the former choose and prefer a committed relationship and sexual relations with a person of the same, rather than opposite, sex.  Because they are gay or lesbian, these couples have been told they cannot gain recognition as married persons.

[46]    The only issues in this case are whether the law of Canada presently permits the formal and state-sanctioned recognition of same-sex relationships so that the province can be required to issue marriage licences to these couples and, if not, whether the court is empowered to compel a change in the law in order to secure public recognition of the kind the petitioners desire.  This case is not concerned with the question whether Parliament or the provincial legislature should or must provide state recognition to same-sex relationships outside the context of marriage as has been done, for instance, by the province of Nova Scotia.

IV.  The Evolution of Parallelism

[47]    In the same period that same-sex couples have been refused marriage licences, a vast array of federal and provincial legislation has been enacted for the purpose of conferring on same-sex couples many of the rights and obligations historically reserved for opposite-sex unions.

[48]    A number of provinces have begun, and some have nearly completed, the process of developing parallel legal structures for same-sex partners and opposite-sex common-law partners.  A summary of the changes that have taken place is instructive.

[49]    Since 1996, British Columbia has enacted legislation tending to create parallel rights and obligations as between married couples, opposite-sex unmarried couples, and same-sex couples in matters of spousal support, guardianship, adoption, pension entitlement, and medical decision-making.

[50]    Until 1997, same-sex partners were unable to claim spousal or child support from one another.  In 1997, the definition of “spouse” in the Family Relations Act, R.S.B.C. 1996, c.128 was amended to include same-sex partners, and same-sex couples may now claim spousal support and child support from one another.

[51]    Until 1995, a single individual could adopt a child.  A husband and wife could jointly adopt a child and either could adopt the child of the other.  Same-sex partners were not able to do the same.  Adoptions by same-sex couples were facilitated by the means of single-individual adoption.  “Step-parenting” was impossible.  Amendments to the Adoption Act, R.S.B.C. 1996, c. 5, now provide that same-sex partners may jointly adopt a child and one may adopt the child of the other.

[52]    The definition of “spouse” in the Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c.181 was amended in 1996 to include same-sex partners.  One same-sex partner is now able to make medical decisions on behalf of the other, a power previously reserved to husband and wife.

[53]    Prior to the amendment of the definition of “spouse” in the Pension Benefits Standards Act, R.S.B.C. 1996, c. 352, statutory entitlement to the pension benefits of another was restricted to those who were husband and wife.  “Spouse” is now defined to include same-sex partners so that each may now participate in the other partner’s pension.

[54]    Other legislative changes have begun to extend rights once reserved for married couples in relation to intestate succession and matrimonial property to common-law and same-sex couples who have cohabited for a period of at least two years.

[55]    Although the definition of spouse in s.1 (1) of the Family Relations Act prohibits common-law and same-sex partners from claiming relief under Part 5 (division of matrimonial property) or Part 6 (division of pensions) as a matter of right, s. 120.1(1) provides that Parts 5 and 6 will apply if such couples have agreed that should be the case.  It follows that in British Columbia, the full benefit of the Family Relations Act is available to same-sex couples should they wish to avail themselves of it.

[56]    Differences remain.  Section 8 of the Evidence Act, R.S.B.C. 1996, c.124, specifies that a "husband" or a "wife" may not be compelled to disclose a communication with the other that occurred during the course of the marriage.  Common-law and same-sex couples do not enjoy the same protection.

[57]    The trend to change in provincial legislation has not been restricted to British Columbia.  In 1999, Quebec enacted An Act to Amend Various Legislative Provisions Concerning de facto Spouses, S.Q. 1999, c. 14 and amended 39 provincial statutes and regulations.

[58]    In 1999, Ontario enacted An Act to Amend Certain Statutes Because of The Supreme Court of Canada Decision In M. v. H., S.O. 1999, c.6 and amended 67 provincial statutes and regulations.  In M. v. H., [1999] 2 S.C.R. 3, the Supreme Court of Canada decided that the definition of "spouse" in the Family Law Act, R.S.O. 1990, c. F.3 which did not include persons in a same-sex relationship, was unconstitutional.

[59]    The legislation in Ontario and Quebec extends a wide range of benefits once exclusively reserved for married couples and opposite-sex unmarried couples to same-sex couples who satisfy the provinces’ minimum cohabitation requirements.  These include benefits such as dependants’ relief, death benefits under no-fault insurance regimes, and survivor’s benefits under worker’s compensation and victims’ compensation regimes. 

[60]    In 2001, Saskatchewan enacted the Miscellaneous Statutes (Domestic Relations) Amendment Acts, 2001, S.S. 2001, c. 50 and (No. 2) S.S. 2001, c. 51.  This legislation appears to go further than that of Ontario and Quebec by granting cohabiting common-law partners and same-sex partners the same benefits as married spouses.  The comprehensive amendments under this Act cover areas such as adoption, spousal support, inheritance rights, pensions, survivor’s benefits, and matrimonial property.

[61]    In 2001, Manitoba enacted similar omnibus legislation under the Act to Comply With The Supreme Court of Canada Decision In M. v. H., S.M. 2001, c. 37, which amended 10 provincial statutes and extended spousal rights and responsibilities to cohabiting same-sex couples in such diverse areas as superannuation, dependant’s relief, family maintenance, survivor’s benefits, pension benefits, and workers’ compensation benefits.

[62]    Nova Scotia enacted the Law Reform (2000) Act, S.N.S. 2000, c. 29, and amended numerous statutes to extend to same-sex partners the rights and responsibilities previously afforded only to opposite-sex couples.  The legislation includes same-sex partners in the statutory definition of “common-law partner”.  In a further step, Nova Scotia amended the Vital Statistics Act, R.S.N.S. 1989, c. 494 to permit “individuals who are cohabiting or intend to cohabit in a conjugal relationship” to make a “domestic-partner declaration”.  The legislation does not refer to sex.  A registered declaration immediately confers on each partner the same rights and obligations as a married spouse enjoys under 12 provincial statutes, including the Fatal Injuries Act, R.S.N.S. 1989, c. 163; the Intestate Succession Act, R.S.N.S. 1989, c. 236; the Matrimonial Property Act, R.S.N.S. 1989, c. 275; and the Pension Benefits Act, R.S.N.S. 1989, c. 340.

[63]    In 2000, the federal Parliament took steps to eliminate the differences in status between opposite-sex and same-sex couples.  The Modernization of Benefits and Obligations Act, S.C. 2000, c. 12, enacts reforms that, in practical terms, allow same-sex partners to claim an income tax credit for a dependent partner; allow a surviving same-sex partner to claim benefits from the Canada Pension Plan; and allow registered retirement savings plans to be transferred to a same-sex partner.

[64]    Residual differences remain in the federal spheres of immigration and evidence law.

[65]    The definition of a spouse in the Immigration Act, R.S.C. 1985, c. I-2 refers only to legally married spouses of the opposite-sex.  However, common-law and same-sex relationships have been recognized through administrative guidelines since 1994.  For example, s. 8.2 of the IP5 Guidelines states that “[t]he separation of common-law or same-sex partners who reside together in a genuine conjugal-like relationship is grounds for humanitarian and compassionate consideration.” 

[66]    Noteworthy is the fact that Bill C-11, if enacted in its draft form, will amend the Immigration Act and formalize the unofficial recognition afforded same-sex relationships for immigration purposes by defining common-law partners to include persons (regardless of sex) who have cohabited in a conjugal relationship for more than one year. 

[67]    As with the Evidence Act of British Columbia, the Canada Evidence Act, R.S.C. 1985, c. C-5 specifies that a "husband" or a "wife" may not be compelled to disclose a communication with the other occurring during the course of the marriage.  The protection does not extend to same-sex partners.

[68]    While legislative changes have been made, in most if not all cases, common-law and same-sex couples only acquire their rights and obligations following a period of conjugal co-habitation that may vary from province to province.  Married couples acquire their rights and obligations forthwith upon marriage.

[69]    The rapid and comparatively recent legislative movement to create similarity supports EGALE's submission that public opinion regarding homosexuality and lesbianism which, in fairly recent history, were considered by psychiatrists to be mental disorders, has shifted dramatically towards acceptance of sexual diversity as a manifestation of normal human variance.

[70]    Given the extent to which provincial legislatures and Parliament have moved to equalize the economic and social consequences associated with all forms of personal relationships, the obvious question is why the law of Canada denies legal recognition to same sex relationships?

V.   “Marriage” and the Common Law

[71]    “Marriage” is not defined by federal statute but two Acts touch upon the substance of the relationship.

[72]    Section 1.1 of the Modernization of Benefits and Obligations Act, provides as follows:

1.1.  For greater certainty, the amendments made by the Act do not affect the meaning of the word “marriage”, that is, the lawful union of one man and one woman to the exclusion of all others.

 

 

[73]    The Marriage (Prohibited Degrees) Act, S.C. 1990, c. 46 prohibits one person from marrying another in the event they are related by lineal consanguinity, affinity or adoption, or related as brother and sister by blood, half-blood or adoption, but does not define marriage.

[74]    In the absence of a statutory definition, marriage is a legal construct or relationship defined by common, or judge-made, law.  It must be understood that saying marriage is a common law construct does not mean it is similar to what is called, in the vernacular, “living common-law”, a term applied to unmarried, opposite sex couples living in a conjugal relationship.

[75]    The earliest relevant judicial discussion of marriage as a legal relationship to which I was referred is that in Hyde v. Hyde and Woodmansee (1866), L.R. 1 P. & D. 130, at p. 130, a decision of the English House of Lords.  The court described marriage in the following terms:

Marriage has been well said to be something more than a contract, either religious or civil - to be an Institution.  It creates mutual rights and obligations, as all contracts do, but beyond that it confers a status.  The position or status of "husband" and "wife" is a recognised one throughout Christendom: the laws of all Christian nations throw about that status a variety of legal incidents during the lives of the parties, and induce definite rights upon their offspring.  What, then, is the nature of this institution as understood in Christendom?  Its incidents vary in different countries, but what are its essential elements and invariable features?  If it be of common acceptance and existence, it must needs [sic] (however varied in different countries in its minor incidents) have some pervading identity and universal basis.  I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others.

 

 

 

[76]    The judicial construct described in Hyde was accepted in Corbett v. Corbett, [1970] 2 All E.R. 33 (Probate, Divorce and Admiralty Division), a case concerned with the question whether a ceremony of marriage that occurred between a male person and a respondent who had undergone one or more sex-change operations was a nullity because the respondent was a male person.  After deciding the respondent was a male, Ormrod J. wrote at p. 48, as follows:

The fundamental purpose of law is the regulation of the relations between persons, and between persons and the State or community.  For the limited purposes of this case, legal relations can be classified into those in which the sex of the individuals concerned is either irrelevant, relevant or an essential determinant of the nature of the relationship.  Over a very large area the law is indifferent to sex.  It is irrelevant to most of the relationships which give rise to contractual or tortious rights and obligations, and to the greater part of the criminal law.  In some contractual relationships, eg life assurance and pensions schemes, sex is a relevant factor in determining the rate of premium or contributions.  It is relevant also to some aspects of the law regulating conditions of employment, and to various State-run schemes such as national insurance, or to such fiscal matters as selective employment tax.  It is not an essential determinant of the relationship in these cases because there is nothing to prevent the parties to a contract of insurance or a pension scheme from agreeing that the person concerned should be treated as a man or as a woman, as the case may be.  Similarly, the authorities, if they think fit, can agree with the individual that he shall be treated as a woman for national insurance purposes, as in this case.  On the other hand, sex is clearly an essential determinant of the relationship called marriage, because it is and always has been recognised as the union of a man and woman.  It is the institution on which the family built, and in which the capacity for natural heterosexual intercourse is an essential element.  It has, of course, many other characteristics, of which companionship and mutual support is an important one, but the characteristics which distinguish it from all other relationships can only be met by two persons of opposite sex.  There are some other relationships such as adultery, rape and gross indecency in which, by definition, the sex of the participants is an essential determinant: see Rayden on Divorce, Dennis v. Dennis and the Sexual Offences Act 1956, SS I and 13.

 

 

 

[77]    The definition of “marriage” set forth in Hyde and adopted in Corbett was also adopted by the British Columbia Court of Appeal in Keddie v. Currie (1991), 60 B.C.L.R. (2d) 1, at p. 14.

[78]    Counsel for EGALE urged that the definition of marriage appearing in Hyde is not binding on this court as it was not necessary to the ruling in that case, concerned as it was with the monogamous nature of marriage and not its opposite-sex character. 

[79]    Hyde was concerned with the question whether a court in England would grant a matrimonial remedy, namely divorce, to the petitioner when, at the time of marriage in Utah which was then part of the territory of the United States, the petitioner and the respondent were adherents to the Mormon faith which permitted polygamous marriages.  The petitioner and respondent had separated and, without divorcing the petitioner, the respondent married a second man in accordance with then accepted Mormon practice.  The second relationship subsisted when the petitioner’s application for divorce was heard.

[80]    In Hyde the court ruled that a marriage that was not subject to the same strictures as a marriage in England would not be recognized as a marriage to which a matrimonial remedy would be afforded.  Because it was of that view, the court was required to state its opinion of the nature of marriage in England at that time.  In that sense, the requirements of heterosexuality and monogamy were material parts of the reasoning.

[81]    Although Hyde was concerned with polygamy and not gender, I cannot accede to the petitioners’ claim that the case should be interpreted to describe the construct of marriage as a monogamous relationship between any two individuals regardless of sex.  The reference to “man” and “woman” in the definition cited by court is as important as the reference to the requirement that, during the currency of the marriage, each spouse not be married to, or capable of being married to, another person.

[82]    I do not construe Hyde to create any new judicial characterization of the construct of marriage but to accurately state the law as it was before 1866 and, in the absence of any indication to the contrary, as it was at November 19, 1858.

[83]    Section 6 of the Marriage Act, R.S.B.C. 1996, c. 282 provides that the law of British Columbia with respect to the validity of marriage is the common law of England at November 19, 1858 until that law is changed by statute.  Because no legislative body has attempted to change the common law of England as it was at the relevant date, “marriage” in British Columbia in 2001 is a relationship that may only subsist between one man and one woman.

[84]    Counsel for EGALE forcefully submits that Corbett was wrongly decided because it relied on Hyde and because it is premised on the capacity for opposite-sex intercourse and reproduction.  EGALE points to the fact and the reality that some married couples do not have the physical capacity for intercourse or reproduction.

[85]    I need not comment further in relation to Hyde.  I do not accede to the view that Corbett was wrongly decided because it focused on the “capacity” for intercourse and reproduction as the root of marriage.  The reference to “capacity for natural heterosexual intercourse [being] an essential element” should not be construed as a statement that is directed to the actual physical ability of any two “married” persons to engage in intercourse or conceive offspring.  Rather, the phrase is a reference to the biological reality that if a child is to be conceived at all by two parties in a relationship, one of the partners must be female and the other male.

[86]    The judicial construct of marriage is endorsed in common parlance.  The Oxford English Dictionary was compiled over several decades.  Volume VI was published in 1908.  The dictionary offered various definitions of marriage, the first two of which were the following:

1.     The condition of being a husband or wife; the relation between married persons; spousehood, wedlock.

 

2.     Entrance into wedlock; the action, or an act, of marrying; the ceremony or procedure by which two persons are made husband and wife.

 

 

[87]    The dictionary definition that appeared in 1908 has been carried forward, unchanged in substance, to this day.  I was referred to no dictionary definition of marriage which contemplates the union of two persons of the same sex.

[88]    I conclude that the common law in Canada and the province of British Columbia is that a marriage is a lawful and monogamous union of two persons of opposite sex.

VI.  Can the Court Change the Common Law?

[89]    Judges can change the law they have made but not without restriction.  In R v. Salituro, [1991] 3 S.C.R. 654, at p. 666, the Supreme Court of Canada summarized the restriction as follows:

The common theme of the cases is that, while complex changes to the law with uncertain ramifications should be left to the legislature, the courts can and should make incremental changes to the common law to bring legal rules into step with a changing society.

 

 

 

[90]    The Court discussed the issue of judicial revision of the common law again in Hill v. Church of Scientology, [1995] 2 S.C.R. 1130 where it said the following at p. 1169:

Historically, the common law evolved as a result of the courts making those incremental changes which were necessary in order to make the law comply with current societal values.  The Charter represents a restatement of the fundamental values which guide and shape our democratic society and our legal system.  It follows that it is appropriate for the courts to make such incremental revisions to the common law as may be necessary to have it comply with the values enunciated in the Charter.

 

 

[91]    The petitioners say that a judicial change to the legal construct of marriage would be incremental and not complex.  The submission results from the fact that by virtue of legislative developments the relationships are marked by substantially similar economic rights and create substantially similar economic obligations.

[92]    I conclude, however, that a judge-made change to the legal nature of marriage would be much more than incremental.

[93]    The change would affect a deep-rooted social and legal institution.  The fact that marriage and divorce are specific matters assigned to Parliament by the Constitution Act, 1867 attests to the importance of marriage in our society and suggests that a change to accommodate gay and lesbian relationships should be made by the Parliament or provincial legislatures, if a change is to be made at all.

[94]    A change of the nature proposed would create new issues of social and community concern.  For example, a marriage not consummated by intercourse is voidable.  There is no evidence before me as to what would constitute consummation in a gay or lesbian relationship if it should be a factor in the formation of the relationship at all.  Because heterosexual intercourse is not a feature of those relationships, consideration would have to be given to differences that might be incorporated into the law.

[95]    Adultery is a ground for divorce under the Divorce Act, R.S.C. 1985 (2nd Supp.), c. 3.  As the law presently stands, adultery is heterosexual in nature.  The concept is not freely transferable to gay and lesbian relationships.  Consideration would have to be given to the question whether the meaning of adultery can or should be revised to apply, in some manner, to all relationships, whether or not heterosexual.

[96]    Suffice to say that quite apart from the social impact arising from the recognition of same-sex marriage, the parties to such relationships should know before they formalize the relationship what factors may result in it being void, voidable, or subject to dissolution.  None of these considerations was addressed in argument before me.  I am not able or prepared to speculate about what those rules might, should, or could be.

[97]    The legal nature of marriage is so entrenched in our society, and the changes in law required so uncertain in the event same-sex marriages are to be recognized by the state, that Parliament or legislatures, and not the court, must make the change.

VII. The Constitutional Question

[98]    The Canadian Constitution divides the entire range of legislative authority between Parliament and the provincial legislatures under ss. 91 and 92 of the Constitution Act, 1867.  As a result there is no doubt the Canadian constitutional framework permits one or other, but not both, of Parliament or the provincial legislatures to enact legislation that will publicly sanction and recognize same-sex relationships, should either wish to do so.  The difficult question is where the authority to provide state sanction and recognition of those relationships resides.

[99]    Under s. 91, Parliament has the authority to make laws for the “peace, order, and good government of Canada”. Under s. 91(26), Parliament has the exclusive authority to legislate in relation to “Marriage and Divorce”.  Section 91 excludes matters that are assigned exclusively to the provinces under s. 92 from Parliament’s legislative authority. Section 92(13) assigns exclusive authority to legislate in relation to “Property and Civil Rights in the Province” to the provinces.

[100]                       In my opinion, a question that arises in the context of these petitions is whether same-sex relationships fall within the class of “Marriage and Divorce” so as to be subject to governance by Parliament, or within the class of Civil Rights so as to be subject to governance by the province.  If such relationships are neither matters of marriage nor civil rights, they may be governed by Parliament for the peace, order and good government of Canada.

[101]                       This answer to the question is important because the petitioners seek remedies that presuppose the meaning of “marriage” can be changed by Parliament.  As I see it, the assumption around which the debate before me has been framed is that Parliament is empowered to enact legislation to define a head of power as opposed to enacting legislation under the authority of a head of power.  The distinction is important.

[102]                       In order to find that Parliament has the power to define same-sex relationships as marriage, the word “marriage” in s. 91(26) must be construed to mean a legal relationship between two persons regardless of sex, or to include “marriage-like” relationships.  There is nothing to suggest that “marriage”, in s. 91(26), was used in any context other than its legal context as understood in 1867, namely, a monogamous, opposite-sex relationship.  That being the case, 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.

[103]                       It is noteworthy that the petitioners do not want same-sex relationships to be characterized as “marriage-like” relationships because that would permit Parliament to sanction same-sex relationships without equating them to the legal construct of marriage.  The affidavit evidence in these proceedings makes it absolutely clear that the petitioners want legal recognition without distinction from opposite-sex marriages.  The only way the objective can be achieved is by changing the legal definition of marriage.

[104]                       The petitioners say that s. 91(26) should be construed to permit Parliament to provide legislative endorsement of same-sex relationships.  Their arguments and my response to them are these.

[105]                       The petitioners say that the Constitution must be interpreted in a broad and liberal manner consistent with the social and cultural times.  In saying that the meaning of words in the Constitution may be modified to conform to current societal values the petitioners rely principally on the judgment of the Privy Council in Edwards v. Attorney General for Canada, [1930] A.C. 124, a case concerned with the question whether women were “persons” within the meaning of s. 24 of the Constitution Act, 1867 who could be appointed to the senate of Canada.  The issue in Edwards was not whether women were persons, which they were, but whether they were persons under some legal disability that prevented them from being appointed to the Senate.  The Privy Council held that s. 24 of the Act should be construed in a manner that did not impose any legal disability on women.  In the course of its reasons, the Privy Council said this at p. 136:

The British North America Act planted in Canada a living tree capable of growth and expansion within its natural limits....

 

Their Lordships do not conceive it to be the duty of this Board - it is certainly not their desire - to cut down the provisions of the Act by a narrow and technical construction, but rather to give it a large and liberal interpretation so that the Dominion to a great extent, but within certain fixed limits, may be mistress in her own house, as the Provinces to a great extent, but within certain fixed limits, are mistresses in theirs.

 

 

[106]                       The Privy Council agreed with the submission that the Constitution Act, 1867 should be interpreted in a large, liberal and comprehensive spirit given the magnitude of the subjects with which it purports to deal in very few words, but said “the question is not what may be supposed to have been intended but what was said”.

[107]                       Because the Privy Council was concerned with the question whether women were persons who were denied the legal capacity to be appointed to the Senate of Canada, it took care to point out at page 137 that it was not concerned with the meaning or scope of heads of power under ss. 91 and 92:

It must be remembered, too, that their Lordships are not here considering the question of the legislative competence either of the Dominion or its Provinces which arise under ss. 91 and 92 of the Act providing for the distribution of legislative powers and assigning to the Dominion and its Provinces their respective spheres of Government.

 

 

[108]                       As examples of the manner in which the Constitution Act, 1867 has been liberally and progressively interpreted, the petitioners point to the interpretation of the word “banking” in s. 91(15) which was extended to financial institutions of a kind proposed by the government of Alberta in the era of social credit and not restricted to the kinds of financial institutions regarded as banks in 1867; the phrase “criminal law” in s. 91(27) which has not limited the range of criminal offences to those offences identified in the law of England in 1867; the phrase “inter-provincial undertaking” appearing in s. 91(10) which has been construed to permit Parliament to legislate in relation to telephones although such instruments were unknown in 1867; and the words “direct taxation within the province” used in s. 92(2) which have been construed to extend to a personal tax, the nature of which did not exist in 1867.

[109]                       In Edwards the Privy Council observed that there was ambiguity surrounding the question of which persons could serve as senators.  The general words “banking”, “criminal law”, "inter-provincial undertaking” and “direct taxation within the province” are equally ambiguous.  The general nature of the words has permitted flexibility and fluid interpretation in order to give effect to the Constitution as the needs of Canadian society have changed over the years.

[110]                       None of the words that have been construed in a liberal manner were legal relationships created by the common law.  Indeed, “marriage” is the only word in either s. 91 or 92 that refers to a legally defined relationship or construct.  The meaning and legal character of the word are not ambiguous. The word is not generic as would be, for instance, the word “family” had that word been used in s. 91(26).  I do not construe the reasoning in Edwards to permit the legal construct of marriage to be unilaterally changed by Parliament.

[111]                       In the course of argument, it was suggested that the Indian Act, R.S.C. 1985, c. I-5, provides support the proposition that Parliament can define a head of power.  The argument is that in accordance with the exclusive authority conferred by s. 91(24) of the Constitution Act, 1867 with respect to “Indians, and lands reserved for the Indians”, Parliament enacted the Indian Act that defines “Indian” to mean “a person who pursuant to this Act is registered as an Indian or is entitled to be registered as an Indian”, thereby suggesting that those who do not meet the criteria are not Indians.

[112]                       I am not persuaded by the argument.  The Supreme Court of Canada has ruled that the reference to “Indian” in s. 91(24) is a reference to the aboriginal peoples of Canada.  If an individual is aboriginal, the character cannot be taken away by registration or entitlement to register.  The definition in the Indian Act does nothing more than ensure that, of all persons who are Indian, only those who register or are entitled to register will be entitled to the benefits or obligations imposed by the Act.  That is far different from attempting to define who is or is not “Indian” or what is or is not marriage.

[113]                       A second argument advanced by the petitioners is that the question of who may marry whom is concerned with the capacity to marry.  In Re The Marriage Act of Canada, [1912] A.C. 880, the Privy Council decided that questions relating to the capacity to marry were matters for Parliament under s. 91(26), while the solemnization of marriage was a matter for the provinces.

[114]                       Other cases concerned with same-sex relationships have regarded the question whether two persons of the same sex may marry as a question of capacity.  In Re North et al and Matheson (1975), 52 D.L.R. (3rd) 280, the Manitoba County Court considered the question whether the Marriage Act, R.S.M. 1970, c. M-50, permitted two males to marry.  Philp Co. Ct. J., wrote as follows at p. 282:

I cannot conclude that the Legislature, in using the words "any two persons" intended to recognize the capacity of two persons of the same sex to marry.  Even if I could conclude that such was the intention of the Legislature, I would have no hesitation in finding that such a provision is clearly ultra vires as being part of the substantive law or marriage and divorce, a matter exclusively within the legislative competence of the Parliament of Canada under s. 91(26) of the British North America Act, 1867.  I would view such a provision as affecting the essential capacity of a person to marry, and not as a condition as to the solemnization which is within the legislative competence of the provincial Legislatures under s. 92(12).

 

 

 

[115]                       In Layland v. Ontario (Minister of Consumer and Commercial Relations) (1993), 14 O.R. (3d) 658, the majority of a three judge panel of the Ontario Divisional Court dismissed an application for an order requiring the issue of a marriage licence to two male persons who wanted to marry.  The basis of the applicants’ complaint was that the restriction on the right of a same-sex couple to marry breached their equality rights under the Charter.

[116]                       In Layland, the court described the position of the province and the Attorney General of Canada as follows at p. 224:

The respondent Minister opposes the application on the ground that the applicants lack the capacity at common law to marry one another for the reason given by the City Clerk's Office.  The Minister takes no position on the alleged Charter violation, because capacity to marry is a matter within the exclusive legislative authority of the Parliament of Canada under Class 26 of s. 91 of the Constitution Act, 1867.  The Attorney General of Canada (the "Attorney General") opposes the application on the ground that the concept of marriage at common law is limited to persons of opposite sex and denies that such limitation violates s. 15 of the Charter.

 

 

 

[117]                       The majority ruled that “persons of the same sex do not have the capacity to marry one another”.

[118]                       With respect, the decisions to which I have referred assumed, without analysis, that the inability of persons of the same sex to marry was a question of capacity.  The decisions are not binding on this court and, with respect, I do not find them persuasive.

[119]                       In my opinion, the fact that persons of the same sex may not legally marry is not a question of capacity.  Rather the inability of same-sex couples to marry results from the fact that, by its legal nature, marriage is a relationship which only persons of opposite sex may formalize.  The requirement that parties to a legal marriage be of opposite sex goes to the core of the relationship and has nothing to do with capacity.

[120]                       The Attorney General of Canada relies on the case of Egan v. Canada, [1995] 2 S.C.R. 513 in support of her claim that Parliament may enact legislation under s. 91(26) to define marriage to include same-sex relationships.  In Egan, the Supreme Court of Canada held that the provisions of the Old Age Security Act, R.S.C. 1985, c. 0-9, excluding same-sex partners from the definition of spouse, did not violate the Charter.  The case was not concerned with marriage but La Forest J., speaking for four of nine judges, said the following at p. 536:

My colleague Gonthier J. in Miron v. Trudel has been at pains to discuss the fundamental importance of marriage as a social institution, and I need not repeat his analysis at length or refer to the authorities he cites.  Suffice it to say that marriage has from time immemorial been firmly grounded in our legal tradition, one that is itself a reflection of long-standing philosophical and religious traditions.  But its ultimate raison d'etre transcends all of these and is firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship.  In this sense, marriage is by nature heterosexual. It would be possible to legally define marriage to include homosexual couples, but this would not change the biological and social realities that underlie the traditional marriage.

[emphasis added]

 

[121]                       Counsel for the petitioners and the Attorney General of Canada say that the comments of the learned La Forest J. in Egan are authority for the proposition that Parliament can redefine “marriage”.  With the greatest of respect, I interpret the learned judge to be saying nothing more than that the definition of marriage might be changed, a proposition with which one can readily agree.  That observation does not answer the question whether the meaning of the word as it appears is s. 91(26) can be changed and if so, by whom and in what manner.

[122]                       In conclusion on this point, I am persuaded that same-sex relationships do not fall within the meaning of marriage in s. 91(26).  There is no basis for any suggestion that same-sex relationships are a matter for the peace, order and good government of Canada.  They are a matter of civil rights of persons within British Columbia.  That being the case, the provincial legislature may provide for their formalization and recognition should it wish to do so.

[123]                       Since Parliament cannot amend the meaning of marriage within s. 91(26) of the Constitution Act, 1867, the relationship will persist as a monogamous, opposite-sex relationship.  That being the nature of marriage for purposes of s. 91(26), differentiation between those who can legally marry and those who cannot must inevitably occur.  The Charter cannot be used to override the reality of differentiation.  As Wilson J. stated in Reference Re Bill 30, an Act to Amend the Education Act, [1987] 1 S.C.R. 1148, at p. 1197 “it was never intended ... the Charter could be used to invalidate other provisions of the Constitution”.  The principle was adapted and applied by the Supreme Court of Canada in Adler v. Ontario, [1996] 3 S.C.R. 609, at p. 648.

[124]                       The relief sought, namely the characterization of same-sex relationships as marriages, cannot be delivered by Parliament under s. 91(26) of the Constitution of Canada without an amendment to the Constitution procured with the agreement of the provinces in the manner contemplated by the Constitution Act, 1982.  In my opinion the petitions must be dismissed.

VIII.     “Marriage” and the Charter of Rights

[125]                       Because my analysis and conclusion in relation to the legislative authority of Parliament under s. 91(26) of the Constitution Act, 1867 may be incorrect, I propose to consider whether the legal meaning of marriage offends the Charter.  For purposes of the analysis I will assume Parliament can decide what kinds of relationships constitute marriage.

[126]                       The petitioners claim that the requirement of opposite-sex marriage offends several provisions of the Charter, namely:

     -    s. 2(b), by depriving same-sex partners of the fundamental freedom of expression;

-                     s. 2(d), by depriving same-sex partners of the fundamental freedom of association;

-                     s. 6, by denying same-sex partners their mobility rights;

-                     s. 7, by denying same-sex partners their right to liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice;

-                     s. 15, by discriminating against same-sex partners on the basis of sexual orientation; and

-                     s. 28, by failing to ensure that the rights and freedoms enshrined in the Charter are guaranteed equally to male and female persons.

 

[127]                       The fact that the practical differences between marriage, common-law relationships, and same-sex relationships have been substantially eliminated by legislation prompts the Attorney General of Canada to say that same-sex couples are no longer in a disadvantaged position within Canadian society as compared to married couples.  I am not persuaded that is the case.

[128]                       Marriage is a state or union accompanied by immediate community recognition and social status not afforded a same-sex relationship.  Married persons enjoy immediate entitlement to economic and social benefits for which unmarried partners must wait.  The waiting period is not consistent as between the provinces or as between the provinces and the federal government.  Married individuals enjoy the protection of the provincial and federal Evidence Acts from the disclosure of communications passing between them while same-sex partners do not. 

[129]                       The rights and benefits conferred by marriage are not inconsequential.  The questions that remain, however, are whether the fact that legal marriage is denied to same-sex partners violates any provision of the Charter and, if so, whether any violation is saved as a reasonable limit that is demonstrably justified in a free and democratic society.

[130]                       In considering objections based on the Charter, I am directed by the Supreme Court of Canada to have regard for the purpose of the fundamental freedom or right in respect of which violation or infringement is alleged.  In R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, Dickson C.J.C. wrote as follows at p. 344:

This Court has already, in some measure, set out the basic approach to be taken in interpreting the Charter.  In Hunter v. Southam Inc., [1984] 2 S.C.R. 145, this Court expressed the view that the proper approach to the definition of the rights and freedoms guaranteed by the Charter was a purposive one.  The meaning of a right or freedom guaranteed by the Charter was to be ascertained by an analysis of the purpose of such a guarantee: it was to be understood, in other words, in the light of the interests it was meant to protect.

 

In my view this analysis is to be undertaken, and the purpose of the right or freedom in question is to be sought by reference to the character and the larger objects of the Charter itself, to the language chosen to articulate the specific right or freedom, to the historical origins of the concepts enshrined, and where applicable, to the meaning and purpose of the other specific rights and freedoms with which it is associated within the text of the Charter.  The interpretation should be, as the judgment in Southam emphasizes, a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection.  At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore, as this Court's decision in Law Society of Upper Canada v. Skapinker, [1984] 1 S.C.R. 357, illustrates, be place in its proper linguistic, philosophic and historical contexts.

 

 

Freedom of Expression

[131]                       The claim that the requirement of opposite-sex marriage offends the freedom of expression rests on the assertion that marriage is a means of expressing love and commitment to a chosen partner.  Counsel for the petitioners did not direct me to any authority suggesting that freedom of expression embraces the formalization of a relationship of any kind.  In the evolving world of Charter rights, the absence of such authority is not fatal, but it is understandable.

[132]                       Section 2(b) guarantees everyone the freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication.  What is guaranteed is the freedom to think the thoughts and hold the opinions one wishes to think or hold, and to express those thoughts or opinions orally or in writing: see Haig v. Attorney General of Canada, [1993] 2 S.C.R. 995 at p. 1033.  In my opinion, the words “freedom of expression” are not apt to describe the formalization of the legal relationship that is marriage whether same-sex or opposite-sex.

[133]                       Nothing in the evidence suggests that any aspect of legal marriage affects or restricts the freedom of a gay or lesbian to express by word or in writing his or her love for, or commitment to, a chosen partner of the same sex.  As a result, the requirement of opposite-sex marriage cannot be placed within the context of s. 2(b) of the Charter.

Freedom of Association

[134]                       Section 2(d) of the Charter guarantees everyone the fundamental freedom of association.  The petitioners claim that the marriage law of Canada offends s. 2(d) by denying same-sex couples freedom of association through marriage.

[135]                       In statements not necessary to the decision in any case, some judges have expressed the view that freedom of association encompasses the freedom to marry.  In Black v. Law Society of Alberta, [1986] 3 W.W.R. 590 (Alta. C.A.) Kerans J.A. said the following, at p. 612:

In my view, the freedom [of association] includes the freedom to associate with others in exercise of Charter-protected rights and also those other rights which – in Canada – are thought so fundamental as not to need formal expression: to marry, for example, or to establish a home and a family, pursue an education, or gain a livelihood.

 

 

 

[136]                       That statement was quoted with approval by Dickson C.J.C. (in dissent with Wilson J.) in Reference Re Public Service Employee Relations Act (Alberta), [1987] 1 S.C.R. 313, at p. 401.

[137]                       In R. v. M.S. (1996), 84 B.C.A.C. 104, the British Columbia Court of Appeal expressed agreement with the views of Tarnopolsky J.A. in the case of Catholic Children’s Aid Society of Metropolitan Toronto v. S.(T.) (1989), 33 O.A.C. 213 (Ont. C.A.), a case concerned with the denial of the birth parents’ right of access to their children after adoption.  At pp. 203-204 of his reasons, Tarnopolsky J.A. rejected the application of freedom of association to families when he described the freedom of association as follows:

Although I would not suggest that the evolution of the scope of the freedom should be limited by what has traditionally been considered to be within that scope, at least in the early stages of Charter interpretation it has to be an important starting point.  The public nature of the fundamental freedoms has been emphasized.  Not having been a totalitarian society, we have not been so much concerned with what one may say or write to oneself.  It is the communication to others that we have considered important to protect and on which some reasonable limits, like the laws of defamation, have been applied.  Similarly, the issues in our history concerning freedom of religion have not been concerned with the private conscience of the individual, as much as with public manifestation of it by individuals or the collective expression of it.  The freedoms of assembly and association are necessarily collective and so mostly public.  Our constitutional concerns have not been with assemblies within families or associations between family members.  Rather, the protections we have been concerned with are for those assemblies and associations that take us outside the intimate circle of our families.  The family is a collective, but the desire of one family member to associate with another is not so much for the purpose of pursuing goals in common, nor even pursuing activities in common. (Reference re Public Service Employee Relations Act (1987), 38 D.L.R. (4th) 161 at p. 226, [1987] 1 S.C.R. 313 (S.C.C.) per McIntyre, J.) as it is merely because they are members of a family.  A parent and child may associate for an economic goal, for example, but the motivation comes from the relationship, rather than a relationship being created because of the economic motivation.  The desire of a parent to be with a child has no goal or purpose like that of associations for economic, political, religious, social, charitable or even entertainment purposes.  If it has any purpose it is that of loving or being loved, of comforting and protecting, or being comforted and protected. [emphasis added]

 

 

 

[138]                       While it may be an overstatement to say that the fundamental freedom of association may never be relevant in the context of marriage, I conclude it is not relevant in the context of Parliament’s ongoing recognition of marriage as an opposite-sex relationship.

[139]                       Permanent relationships between gays and lesbians are not prohibited by anything that Parliament or the provinces have, or have not, done with respect to the legal nature of marriage.  Indeed, legislative progress in many provinces confirms that gay and lesbian relationships are a recognized and generally accepted aspect of today’s society.  The fact that such relationships do not have the approbation of the state so as to give rise to the rights and obligations that immediately result upon marriage does not amount to a denial of the fundamental freedom of association.

The Right to Mobility

[140]                       Section 6(2) of the Charter gives every citizen and permanent resident of Canada the right to move to, take up residence in, and pursue a livelihood in, any province.  Section 6(3) provides that the right is subject to any laws or practices of general application in force in a province and any laws providing for reasonable residency requirements as a qualification for the receipt of publicly provided social services.

[141]                       The petitioners say their mobility rights are adversely affected by their inability to marry because a period of co-habitation is required of them before becoming entitled to provincial benefits that are immediately available to opposite-sex married couples.  Moreover, the period of co-habitation differs from province to province.

[142]                       The intent of s. 6 is to ensure that provinces do not enact laws that restrict mobility.  Movement may not be discouraged by applying different elimination or qualification periods under provincial law to newly arrived residents as opposed to the provincial population at large.  There is no requirement that elimination or qualification periods of general application within a province be the same in all provinces.  There is no suggestion in this case that same-sex couples who move from one province to another are treated differently from the general same-sex population in the province to which they might move.

[143]                       The differences of which the petitioners complain result from the legal requirement of opposite-sex marriage and not from an attempt by any province to restrict mobility.  In my opinion, the fact that same-sex relationships are not recognized as marriage does not impose any restriction on the petitioners’ mobility rights within the meaning of s. 6 of the Charter.

The Right to Liberty and Security of the Person

[144]                       Section 7 of the Charter provides as follows:

7.   Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

 

 

 

[145]                       The petitioners claim that denying same-sex partners the right to marry violates their right to liberty and security of the person.

[146]                       The Supreme Court of Canada has considered the nature and extent of the legal rights protected by s. 7 on many occasions: see, for example, R v. Morgentaler, [1988] 1 S.C.R. 30; Rodriguez v. Attorney General of British Columbia, [1993] 3 S.C.R. 519; Godbout v. Longueuil (City), [1997] 3 S.C.R. 844; and Blencoe v. British Columbia (Human Rights Commission), [2000] SCC 44, [2000] 2 S.C.R. 307.  The interpretation that has evolved is clearly stated in the reasons of La Forest J. in Godbout at para. 66:

The foregoing discussion serves simply to reiterate my general view that the right to liberty enshrined in s. 7 of the Charter protects within its ambit the right to an irreducible sphere of personal autonomy wherein individuals may make inherently private choices free from state interference.  I must emphasize here that, as the tenor of my comments in B.(R.) should indicate, I do not by any means regard this sphere of autonomy as being so wide as to encompass any and all decisions that individuals might make in conducting their affairs.  Indeed, such a view would run contrary to the basic idea, expressed both at the outset of these reasons and in my reasons in B.(R.), that individuals cannot, in any organized society, be guaranteed an unbridled freedom to do whatever they please.  Moreover, I do not even consider that the sphere of autonomy includes within its scope every matter that might, however, vaguely, be described as "private".  Rather, as I see it, the autonomy protected by the s. 7 right to liberty encompasses only those matters that can properly be characterized as fundamentally or inherently personal such that, by their very nature, they implicate basic choices going to the core of what it means to enjoy individual dignity and independence.  As I have already explained, I took the view in B.(R.) that parental decisions respecting the medical care provided to their children fall within this narrow class of inherently personal matters.  In my view, choosing where to establish one's home is, likewise, a quintessentially private decision going to the very heart of personal or individual autonomy.

 

 

 

[147]                       I do not construe the law of marriage in Canada to interfere with anyone’s sphere of personal autonomy.  As I have noted previously, the legal relationship of marriage does not deny the petitioners, nor anyone else whether heterosexual or not, the capacity to live together in any kind of arrangement and on whatever terms they choose.  Rather, by accepting the common law meaning of marriage, Parliament has said that those of opposite sex whose relationship has been solemnized, will enjoy the legal rights and obligations that flow from the formalization of their relationship.  Others will not.

[148]                       With respect, the petitioners’ submission that their legal right of liberty is infringed presupposes that marriage is not heterosexual in the Canadian context, a conclusion that I do not accept.

[149]                       The petitioners point to Loving v. Virginia (1967), 388 U.S. 1, a decision of the United States Supreme Court, as support for the proposition that the freedom to marry is a basic civil right in the United States and so, too, it should be in Canada.  In Loving the court struck down the miscegenation law of the State of Virginia that rendered a marriage between a “white person and a coloured person” absolutely void.

[150]                       In context, the court’s statement in Loving about the nature of the freedom to marry was apt.  The opposite-sex nature of marriage was not in issue.  That being the case, it was the fundamental or basic civil right of an individual to choose the person of opposite sex to whom he or she would be married without restriction because of race or colour.

[151]                       In context, Loving was concerned with rights.  That is not the case in the petitioners’ circumstances.  Their right to marry a person of opposite sex is not in question.  It is the failure of marriage to contemplate same-sex unions that gives rise to their complaint.

[152]                       Parliament has created a legal right that can only be acquired by a couple that meets the conditions of the relationship, principal among which is that the parties be of opposite sex.  The right to marry does not exist independent of the law that has defined the essence of the relationship.

[153]                       In my opinion, a distinction must be drawn between a right of liberty in respect of some matter that is uniquely personal to the individual, and the inability to avail oneself of a status created by law.  Where one is concerned with rights created by law, and the rights are not available to all, the question that should be asked is whether the law conferring the status infringes equality rights.

[154]                       The Supreme Court of Canada regards security of the person for purposes of s. 7 of the Charter as freedom from state interference with bodily integrity and from serious state-imposed psychological stress.  The law of marriage does not interfere with bodily integrity.  There is no evidence before me that any of the individual petitioners complain of serious state-imposed psychological stress of the kind that would amount to an infringement of the security of the person.

[155]                       I am satisfied that the marriage law of Canada does infringe any right guaranteed under s. 7 of the Charter.

Discrimination on the Basis of Sexual Orientation

[156]                       The petitioners say that the legal requirement of opposite-sex marriage infringes their equality rights.

[157]                       Section 15(1) of the Charter provides as follows:

15.(1)    Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

 

   (2)    Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

 

 

 

[158]                       The purpose of s. 15 was described by the Supreme Court of Canada in Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, at p. 500:

In general terms, the purpose of s. 15(1) is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.

 

 

 

[159]                       In Law, the Supreme Court of Canada settled upon an analytical approach by which to determine whether any law infringes an individual's equality rights.  The nature of the analysis was described by Iacobucci J. in the following terms at p. 523:

In my view, the proper approach to analyzing a claim of discrimination under s. 15(1) of the Charter involves a synthesis of these various articulations.  Following upon the analysis in Andrews, supra, and the two-step framework set out in Egan, supra, and Miron, supra, among other cases, a court that is called upon to determine a discrimination claim under s. 15(1) should make the following three broad inquiries.  First, does the impugned law (a) draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or (b) fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?  If so, there is differential treatment for the purpose of s. 15(1).  Second, was the claimant subject to differential treatment on the basis of one or more of the enumerated and analogous grounds?  And third, does the differential treatment discriminate in a substantive sense, bringing into play the purpose of s. 15(1) of the Charter in remedying such ills as prejudice, stereotyping, and historical disadvantage?

 

 

[160]                       In order to sustain a finding that equality rights have been infringed in this case, three questions must be answered in the affirmative:

     1.   Does the marriage law of Canada subject the petitioners to differential treatment?

     2.   Is the differential treatment based on one or more of the enumerated or analogous grounds in s. 15?

     3.   Does the differential treatment discriminate in a substantive sense?

 

[161]                       Assuming it is open to Parliament to change the meaning of marriage, it is my opinion that the questions should be answered in the affirmative.

[162]                       As I have remarked, an individual’s right to liberty includes the right to choose with whom to spend one’s life in close, even conjugal, company.  The fact that some relationships may be formalized as marriages distinguishes and sets them apart from others.

[163]                       Some opposite-sex couples choose to formalize their relationship by a contract of marriage.  Other committed opposite-sex couples choose to live together in a conjugal, unmarried relationship but they enjoy the right to choose whether or not to marry.

[164]                       Same-sex couples do not have the choice available to opposite-sex couples because their sexual orientation does not conform to that required for marriage.

[165]                       Opposite-sex couples who marry acquire immediate social approbation and legal rights and obligations as between each other and as between them and society as a whole.  Same-sex couples are denied that option and, in my opinion, they are denied equal benefit of the law within the meaning of s. 15(1).

[166]                       In Layland v. Ontario the majority of the Ontario Divisional Court considered and rejected the claim that the opposite-sex nature of marriage discriminated against gays.  At p. 666, the majority stated the following:

The law does not prohibit marriage by homosexuals provided it takes place between persons of the opposite sex.  Some homosexuals do marry.  The fact that many homosexuals do not choose to marry, because they do not want unions with persons of the opposite sex, is the result of their own preferences, not a requirement of the law.

 

 

 

[167]                       With respect, I do not think it is an answer to say that there is no differential treatment because either party to a same-sex relationship is free to gain the legal recognition afforded marriage by choosing a partner of opposite sex.  That rationale avoids the real issue, namely why some relationships of choice are accorded legal status and others are not.

[168]                       In my opinion, the fact that marriage is open to those who are partners in an opposite-sex relationship but not open to those who are partners in a same-sex relationship compels an affirmative answer to the first question.

[169]                       The second question must also be answered in the affirmative.  The difference in entitlement results from sexual orientation which is an analogous ground for purposes of s. 15 of the Charter: see Egan v. Canada.

[170]                       The difficult question is whether the distinction between opposite-sex and same-sex couples in the law of marriage discriminates against gays and lesbians in a substantive sense. 

[171]                       In M. v. H., at para. 65, the majority repeated the view adopted in Law:

The determination of whether differential treatment imposed by legislation on an enumerated or analogous ground is discriminatory within the meaning of s. 15(1) of the Charter is to be undertaken in a purposive and contextual manner.  The relevant inquiry is whether the differential treatment imposes a burden upon or withholds a benefit from the claimant in a manner that reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration: Law, supra, at para.88.

 

 

 

[172]                       In Law, the Supreme Court said one should refer to a variety of contextual factors in order to ascertain whether a law demeans dignity.  The Court was careful to say the list of factors was not closed and there was no specific formula that could be applied in every case.  The Court identified four contextual factors that might be considered when deciding whether legislation demeans the claimant’s dignity: whether there is pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group at issue; whether there is a correspondence, or lack of it, between the ground on which a claim is based and the actual need, capacity, or circumstances of the claimant; whether the impugned legislation has an ameliorative purpose or effect for a group historically disadvantaged in the context of the legislation; and whether the distinction restricts access to a fundamental social institution, or affects a basic aspect of full membership in Canadian society.

[173]                       I do not understand the Court to have said that it is necessary to find that each of the factors applies in any particular circumstances.  Nor is it necessary to restrict the analysis to the factors identified by the Court in Law.

[174]                       In terms of the factors identified in Law, Canadian courts accept the fact that gays and lesbians have been disadvantaged by stereotyping and prejudice.  There is a need in the gay and lesbian community to have society acknowledge the value and reality of same-sex unions.  The distinction between opposite-sex and same-sex relationships in the marriage context excludes the latter from a social and legal institution of considerable importance and tends to perpetuate the stereotypical and frequently critical community view of gays and lesbians.

[175]                       The Attorney General of Canada says that across cultures, opposite-sex marriage is intended "to complement nature with culture for the sake of reproduction and the intergenerational cycle".  She says "the universal norm of marriage has been a culturally approved opposite-sex relationship intended to encourage the birth (and rearing) of children".  The Attorney General says legal marriage does not discriminate in a substantive sense because gays and lesbians cannot achieve the ends for which marriage exists.

[176]                       As I appreciate their position, the petitioners say that marriage in Canadian society can no longer be said to exist for a purpose that is uniquely heterosexual.  Rather it is a means of acknowledging a committed personal relationship and the sex of the partners is not material.

[177]                       The legislative changes in British Columbia, many other provinces, and Parliament that have removed many of the historic legal, economic and social differences between married, unmarried opposite-sex, and same-sex couples while leaving the legal nature of marriage intact, have sharpened the focus on the fact that marriage is a relationship reserved for partners of opposite sex.  Social changes have diminished the importance of marriage to some extent.  Advances in alternative means of conception have decreased reliance upon marriage as an opposite-sex relationship required for the purpose of procreation.  Children are conceived by, born to, and raised by opposite-sex, unmarried couples.  They are also adopted and raised by same-sex couples.

[178]                       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.  The question whether the distinction between opposite-sex and same-sex couples can, or should, be preserved is better considered under s. 1 of the Charter.

[179]                       In my opinion, the third question should be answered in the affirmative.  As a result, I conclude that adherence to the meaning of marriage as an opposite-sex relationship infringes the petitioners' equality rights.

[180]                       The petitioners claim that s. 28 of the Charter, guaranteeing rights and freedoms equally to male and female persons, creates an independent Charter right that is also infringed.  I do not agree.  In its own words, the section does nothing more than say that whatever rights and freedoms are guaranteed by the Charter, they are guaranteed for men and women alike and are not to be construed differently as between the sexes.

IX.  Is the Infringement of Equality Rights Saved by

     Section 1 of the Charter?

 

 

[181]                       The remaining question is whether the infringement of equality rights is saved by s. 1 of the Charter which provides as follows:

1.   The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

 

 

 

[182]                       The Attorney General of Canada, who urges the preservation of the common law of marriage, bears the onus of demonstrating that the law is a reasonable and justifiable limit on the petitioners’ equality rights: see Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143.

[183]                       In RJR-Macdonald Inc. v. Canada (A.G.), [1995] 3 S.C.R. 199, a case concerned with legislation prohibiting tobacco advertising, the Supreme Court of Canada (McLachlin J. at p. 328) described the burden in the following terms:

...the state must show that the violative law is "demonstrably justified."  The choice of the word "demonstrably" is critical.  The process is not one of mere intuition, nor is it one of deference to Parliament's choice.  It is a process of demonstration.  This reinforces the notice inherent in the word "reasonable" of rational inference from evidence or established truths.

 

The bottom line is this.  While remaining sensitive to the social and political context of the impugned law and allowing for difficulties of proof inherent in that context, the courts must nevertheless insist that before the state can override constitutional rights, there be a reasoned demonstration of the good which the law may achieve in relation to the seriousness of the infringement.  It is the task of the courts to maintain this bottom line if the rights conferred by our constitution are to have force and meaning.  The task is not easily discharged, and may require the courts to confront the tide of popular public opinion.  But that has always been the price of maintaining constitutional rights.  No matter how important Parliament's goals may seem, if the state has not demonstrated that the means by which it seeks to achieve its goal are reasonable and proportionate to the infringement of rights, then the law must perforce fail.

 

 

 

[184]                       The Supreme Court of Canada discussed the nature of the analysis again in Thomson Newspapers v. Canada, [1998] 1 S.C.R. 877.  In Thomson the Court was concerned with the constitutional validity of provisions of the Canada Elections Act, R.S.C. 1985, c. E-2 restricting the publication of opinion polls within three days of an election.  Bastarache J. wrote as follows at p. 939:

The analysis under s. 1 of the Charter must be undertaken with a close attention to context.  This is inevitable as the test devised in R. v. Oakes, [1986] 1 S.C.R. 103, requires a court to establish the objective of the impugned provision, which can only be accomplished by canvassing the nature of the social problem which it addresses.  Similarly, the proportionality of the means used to fulfil the pressing and substantial objective can only be evaluated through a close attention to detail and factual setting.  In essence, context is the indispensable handmaiden of the proper characterization of the objective of the impugned provision, to determining whether that objective is justified, and to weighing whether the means used are sufficiently closely related to the valid objective so as to justify an infringement of a Charter right.

 

 

 

[185]                       As the Supreme Court said in M. v. H., the analysis under s. 1 requires a consideration of the legislative objective and whether the need addressed by it is pressing and substantial.  There must be proportionality between the objective and the means selected to achieve it.  In that regard, there must be a rational connection between the objective and the means selected to achieve it, the means must result in minimal impairment of the rights of the complainants, and there must be proportionality between the deleterious and salutary effects of the law.

[186]                       The analysis does not necessarily require scientific evidence.  In that regard, in Thomson at p. 941, Bastarache J. quoted from the reasons of McLachlin J. in RJR–MacDonald Inc. as follows:

As the s. 1 jurisprudence has established, the civil standard of proof on a balance of probabilities at all states of the proportionality analysis is more appropriate: Oakes, supra, at p. 137; Irwin Toy, supra, at p. 99… .  Discharge of the civil standard does not require scientific demonstration; the balance of probabilities may be established by the application of common sense to what is known, even though what is known may be deficient from a scientific point of view: see Snell v. Farrell, [1990] 2 S.C.R. 311

 

 

 

[187]                       The Attorney General of Canada says that the common law of marriage is saved by s. 1 of the Charter for several reasons. 

[188]                       First, the objective of limiting marriage to opposite-sex couples is sufficiently important to warrant infringing the rights of the petitioners.  At the risk of over-simplification, the Attorney says the principal purpose of marriage is to provide a societal structure for the procreation of children in order to perpetuate Canadian society.  The Attorney says the importance of the objective cannot be doubted since all jurisdictions of the world, except the Netherlands and more recently Germany, regard marriage in the same way.

[189]                       Second, there is a rational connection between the objective and the limitation of marriage to opposite-sex relationships because it is by such relationships that procreation occurs.

[190]                       Third, the law minimally impairs the rights of the petitioners as there appears to be no way to achieve the objective other than by means of the definition that has been developed at common law.

[191]                       Fourth, there is proportionality between the deleterious effects resulting from the exclusion of same-sex relationships from the legal relationship of marriage and the salutary purpose the law is designed to serve.  Denying the legal status of marriage to same sex couples deprives them of the marriage label but, by virtue of legislative developments, does not deprive them of other rights and obligations derived from marriage.  The gain to society from the preservation of the deep-rooted and fundamental legal institution of opposite-sex marriage outweighs the detrimental effect of the law on the petitioners.

[192]                       In response, the petitioners say the following.  First, the unspoken but real purpose for the restriction in the law against same-sex marriage is the discriminatory belief that same-sex couples are not worthy of being married.

[193]                       Second, the suggestion that marriage has been universally understood throughout time and cultures as an institution designed to meet the unique needs, capacities, and circumstances of opposite-sex couples and their children, demeans the complementarity of same-sex relationships.

[194]                       Third, the assertion that procreation is the primary purpose of marriage is not supported by the historical record and has only recently been offered as the purpose of marriage.

[195]                       Fourth, if an objective of marriage is to allow for the possibility of procreation and child-rearing, attainment of the objective does not require a restriction on same-sex marriage.

[196]                       Fifth, the common law bar on the freedom of same-sex couples to marry does not constitute the least intrusive means to achieve a goal of providing institutional support to couples who have and raise children.

[197]                       Sixth, the deleterious effects of the common law outweigh the salutary effects.  The restriction against same-sex marriage represents a rejection of the personal aspirations of same-sex couples, omits to recognize their “person-hood”, denies them their dreams, and denies them the freedom to make a fundamental personal choice.

[198]                       With respect for those of a contrary view, I am of the opinion that the law defining marriage as an opposite-sex relationship is a reasonable limit prescribed by law and is demonstrably justified in the context of the free and democratic Canadian society.

[199]                       Quite apart from the kind of analysis approved by the Supreme Court of Canada in Oakes and Thomson, the limitation is justified by the Constitution itself.  There is no doubt that its framers and the Parliament of England knew and comprehended the nature of marriage in 1867.  As opposed to the general subject of family, it was marriage and divorce that were considered matters of such national importance that exclusive jurisdiction over them should be assigned to the federal Parliament.  The Constitution, itself, expressed an intention that marriage was an issue of pressing and substantial national importance and differentiation and discrimination inherent in the fact that marriage was then, and still is, an opposite-sex relationship would be permitted.

[200]                       Section 52(1) of the Constitution Act, 1867 provides that the Constitution is the supreme law of Canada.  Under s. 91(26), Parliament was given plenary power in relation to marriage, a construct that is, by its nature, not inclusive of everyone.  Failure to rely on s. 1 to save the core nature of legal marriage would result in one aspect of the Constitution being used to limit a plenary power in respect of which qualification was not intended.  I do not understand the law to be that the Charter can be used to alter the head of power under s. 91(26) so as to make marriage something it was not when the various fields of legislative authority were divided between Parliament and the provinces.

[201]                       I find support for my conclusion in Reference Re The Education Act (Bill 30) in which the Supreme Court of Canada considered whether s. 93 of the Constitution Act, 1867 that gave plenary power in relation to education to the provinces but required the provinces to support denominational schools subject to certain limits, prohibited full funding of separate Roman Catholic schools under legislation proposed by Ontario.  Wilson J. held that the rights and privileges afforded separate schools under s. 93 of the Constitution Act, 1867 were not subject to attack under the Charter.  At p. 1197, Wilson J. stated her opinion as follows:

It was never intended, in my opinion, that the Charter could be used to invalidate other provisions of the Constitution, particularly a provision such as s. 93 which represented a fundamental part of the Confederation compromise.

 

 

 

[202]                       By analogy, the Charter cannot be used in an attempt to eliminate the differences or distinctions that must inevitably result as a consequence of Parliament relying on the "Marriage and Divorce" head of power under s. 91(26) to define some relationships, and not others, as marriage.

[203]                       Should I be in error, then the conventional s.1 analysis leads to a similar conclusion.

[204]                       The evidence in this case is replete with references to the opposite-sex nature of marriage as the norm in societies similar in nature to Canada.  There are many explanations for the historical origin of marriage including the protection of self and property, survival, the promotion of social order, and the preservation or reproduction of the human species.  Its early parameters created significant and inappropriate burdens for women that have required elimination over the centuries.  Those changes have enhanced, rather than diminished, the importance of marriage in society.

[205]                       While, in the recent past, same-sex couples have been accorded many of the rights and obligations previously reserved for married couples, the one factor in respect of which there cannot be similarity is the biological reality that opposite-sex couples may, as between themselves, propagate the species and thereby perpetuate humankind.  Same-sex couples cannot.

[206]                       I accept the petitioners’ submission that same-sex couples create family units and discharge child-rearing responsibilities much as opposite-sex couples do.  Perhaps the best evidence of that is the fact adoption laws in this and other provinces have been amended to recognize the needs and capabilities of same-sex couples.  I also accept the fact that numerous alternatives to heterosexual intercourse have evolved and continue to evolve in Canadian society to facilitate procreation.

[207]                       At the same time, whatever view one holds of its other aspects, it cannot be denied that marriage remains the primary means by which humankind perpetuates itself in our society.  I reject the petitioners' submissions that this is a recent rationalization of the origin and essential importance of marriage.  The state has a demonstrably genuine justification in affording recognition, preference, and precedence to the nature and character of the core social and legal arrangement by which society endures.

[208]                       The importance of the opposite-sex marriage relationship in Canada and comparable societies was described by Gonthier J. (in dissent) in Miron v. Trudel, [1995] 2 S.C.R. 418 at pps. 458-452.  His discussion was endorsed by La Forest J. in Egan v. Canada at p. 536:

My colleague Gonthier J. in Miron v. Trudel has been at pains to discuss the fundamental importance of marriage as a social institution, and I need not repeat his analysis at length or refer to the authorities he cites.  Suffice it to say that marriage has from time immemorial been firmly grounded in our legal tradition, one that is itself a reflection of long-standing philosophical and religious traditions.  But its ultimate raison d'etre transcends all of these and is firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship.  In this sense, marriage is by nature heterosexual.  It would be possible to legally define marriage to include homosexual couples, but this would not change the biological and social realities that underlie the traditional marriage.

 

The marital relationship has special needs with which Parliament and the legislatures and indeed custom and judge-made law have long been concerned.  The legal institution of marriage exists both for the protection of the relationship and for defining the obligations that flow from entering into a legal marriage.  Because of its importance, legal marriage may properly be viewed as fundamental to the stability and well-being of the family and, as such, as Gonthier J. argued in Miron v. Trudel, Parliament may quite properly give special support to the institution of marriage.  It is spouses in legal marriage who constitute the bulk of the beneficiaries of spousal allowances.

 

 

 

[209]                       The legitimacy of the state’s interest in marriage is beyond question.  There is no need for scientific evidence.  The importance of the essential character of marriage to Canadian society is a matter of common sense understanding and observation.

[210]                       Other than the desire for public recognition and acceptance of gay and lesbian relationships, there is nothing that should compel the equation of a same-sex relationship to an opposite-sex relationship when the biological reality is that the two relationships can never be the same.  That essential distinction will remain no matter how close the similarities are by virtue of social acceptance and legislative action.

[211]                       I concur in the submission of the Attorney General of Canada that the core distinction between same-sex and opposite-sex relationships is so material in the Canadian context that no means exist by which to equate same-sex relationships to marriage while at the same time preserving the fundamental importance of marriage to the community.

[212]                       I reject the petitioners' claim that the real basis for the omission to publicly sanction and recognize same-sex relationships is the discriminatory belief that same-sex couples are simply not worthy of being married.  It is true that some very few elected members of Parliament made demeaning and derogatory remarks about same-sex relationships in the course of the debate in Parliament surrounding the Modernization of Benefits and Obligations Act.  The remarks of a few members found no favour with the majority.  There is no evidence to support the petitioners' submissions that marriage is opposite-sex in its essential character because same-sex couples are not worthy of being married.  In my opinion, the issue before the court has nothing to do with the worth of any individual whether his or her preference is for a same-sex or opposite-sex relationship.  The only issue is whether marriage must be made something it is not in order to embrace other relationships.

[213]                       I turn to a consideration of the last requirement, namely that the salutary effects outweigh the deleterious effects of the law.

[214]                       Same-sex and opposite-sex relationships are, at their core, demonstrably different.  They cannot be equated except by changing the deep-rooted social and legal relationship around which Canadian society has evolved and continues to evolve.  Because of the importance of marriage in the Canadian context, past and present, the salutary effect associated with the preservation of its opposite-sex core far outweighs the deleterious effect resulting from the refusal to provide legal status to same-sex relationships under the rubric of marriage.  That is particularly so when the practical effect of recent legislative change has been to remove or minimize, where possible, the differences between the relationships as regards day to day living.

[215]                       The infringement of the petitioners' equality rights is saved by s. 1 of the Charter.

X.   Costs

[216]                       It follows, as I stated at the outset, that the petitions are dismissed.  In the absence of agreement, the parties may address the matter of costs by written submissions through the registry.

"The Honourable Mr. Justice Pitfield"