The liberation of marriage - Part II



Ontario, British Columbia and Quebec comply with the new definition of marriage that came into effect on June 10, 2003. Will everyone else have to wait for Parliament to codify the law in 2005, or will a province do the right, and legal, thing first?



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"It's about equality and human rights in our country. It's something that needs to be done."
Isaac Ransom, Liberal Party,
Nova Scotia (Halifax Chronicle Herald, Apr. 4, 2003)





"We must use time creatively, in the knowledge that the time is always ripe to do right ... Now is the time to lift our national policy from the quicksand of injustice to solid rock of human dignity."
Martin Luther King Jr., 1963, as quoted by Justice Harry Laforme, Ontario Divisional Court decision in support of equal marriage (July 12, 2021)



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Legal Canada - The liberation of marriage - Part II

April 8, 2004

The liberation of marriage - Part II
Quebec court reinforces national scope of decision

"In theory it is true that the jurisdiction of the provincial courts doesn't extend beyond the province," said Irving, the senior partner in Irving, Mitchell & Associates. "But when you are talking about a federal statute and a court which has jurisdiction to decide whether it is constitutional or not, then it must be so everywhere. That is the most important and interesting thing about the judgment."
Colin Irving, The Lawyers Weekly, April 9, 2021)

On June 10, 2021, the Court of Appeal for Ontario changed the common law definition of marriage. It was the court's obligation to ensure that judge-owned or common law was in compliance with the Canadian Charter. The common law definition of marriage, passed on to us from 19th century England, was most certainly in conflict with our Charter, until last June. All of Canada now lives under a new common law definition of marriage, but the Ontario court's enforcement of the law was limited to its own province, while the federal government reformulated a response, this time in support of same-sex marriage.

Courts in British Columbia and Quebec gave same-sex couples immediate access to marriage when couples there appealed in light of the Ontario decision. But so far, no province has voluntarily stepped forward to right this wrong without a court order. Canada's Justice Minister encouraged other provinces to stop discriminating in June (our first "Liberation of marriage" report) and July last year. But so far, Canada's remaining provinces and territories seem to be waiting for their own court orders or for the federal government to codify the new common law definition of marriage in Parliamentary legislation.

The five-justice panel at the Quebec Court of Appeal described the national situation created by the June 10, 2021 Ontario judgment (translation from The Lawyers Weekly, April 9, 2021):

ďIf itís true that generally judgments from provincial tribunals donít have an extraterritorial effect, it remains that it is judicially unacceptable www.socialjustice.orgthat in a constitutional matter involving the Attorney General of Canada regarding a matter within the authority of the federal parliament, a provision be inapplicable in one province and in force in all the others.Ē

Five consecutive courts and fifteen judges from three provinces all agree. The Supreme Court of Canada declined to hear an appeal of the Ontario Court decision. Former Prime Minister Jean Chretien and former Justice Minister Martin Cauchon have said equal marriage must be available to all Canadians.

Over 70% of Canadians now live some place that will marry gay and lesbian couples. We still hope that another province will step forward, without an order from court, and before the laggard Paul Martin government finally codifies the law into federal legislation.

Canadian provinces that do not now allow same-sex couples to marry are violating constitutional rights. An affront to anyone protected under our Charter is an affront to all who value justice and constitutional democracy.

Justice Laforme, the first judge to recommend immediate remedy to marriage discrimination (Ontario Divisional Court, July 12, 2002) justified allowing same-sex couples into marriage without further delay, in part, by quoting from Martin Luther King Jr. (circa. 1963):

"We must use time creatively, in the knowledge that the time is always ripe to do right ... Now is the time to lift our national policy from the quicksand of injustice to solid rock of human dignity."

Photo by, 2004San Francisco Mayor Gavin Newsom said, "There are easy decisions, and then there are the easiest decisions ..."

Others have famously followed Mayor Newsom in the U.S., but none of the remaining Canadian provinces have made the easiest decision: issue marriage licenses to same-sex couples.

The Justice Minister and Premier of each province have impeccable and weighty legal authority and federal direction that says what should be done.

Ontario, British Columbia and Quebec will be joined by the rest of Canada sooner or later, but it would be a credit to our country, and helpful to others, if our provinces aligned themselves to the Charter without first exhausting every last potential, no matter how unlikely, for an alternative.

The solid rock of human dignity waits.

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