Case For Legal Recognition
Initially, two couples including one of the couples represented by Martha McCarthy
expressed an interest in using the procedure. Unfortunately, section 18 of the
Act appears to limit the procedure to persons who have never been married. As
a result, the two couples agreed to defer their request and to pursue marriage
licenses instead. Another two couples, one male and one female, came forward to
have the banns announced and to be married. The banns were first read on International
Human Rights Day, December 10, 2000, and remarkably, no one objected. During the
subsequent two readings there were objections on religious grounds, including
one from the aforementioned Ken Campbell. Reverend Hawkes rejected the objections.
On January 14, 2001, Kevin Bourassa married Joe Varnell, and Elaine and Anne Vautour
were married. It is believed to be the first legal same sex wedding in the world,
at least since the Middle Ages.
MCCT had been participating as an observer
in Halpern v. Toronto, the action brought in the Divisional
Court seeking marriage licenses for same sex couples. On January 19, 2001, Justice
Lang issued her decision granting intervener status to MCCT in that case, subject
to certain terms. That same day, MCCT launched its own application as a result
of the Ontario government’s refusal to register the January 14 marriages under
the Vital Statistics Act. On Thursday, January 25, the parties in each
proceeding agreed to an order for trial together of the two matters pursuant to
Rule 6. MCCT has filed a range of affidavits in support of its position including
those of a historian, a straight Anglican bishop and a gay Quaker. Cross examinations
will take place over the summer. The matters are expected to be heard during the
week of November 5.
MCCT will be arguing that there is no exclusion
of same sex couples from marriage contained in the statutes or the common law.
Alternatively, it will argue that any such exclusion violates sections 2(a) (freedom
of religion) and 15(1) (equality – sex, sexual orientation and religion) of the
Charter. MCCT will cite the freedom to marry which is every Canadian’s
right under international law, such as the International Covenant on Civil and
Political Rights. MCCT will contend that the Government’s current stance amounts
to a prohibited state endorsement of one religious view over another, a relic
of earlier attempts to limit the recognition of the marriages of minority groups.
It will also contend that any such exclusion operates as sex and sexual orientation
discrimination. In each case, MCCT will argue that the Charter violation is not
demonstrably justified. It seems clear that this is a case, like Vriend v.Canada,
where the discrimination continues because it is traditional or popular, and not
because it is rational or justified.
 Court File No. 684/00.
  1 S.C.R. 493.