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Read
the full decision from
"We
can't discriminate between Canadians - it's a question of rights."
Human Dignity "Human
dignity means that an individual or group feels self-respect and self-worth.
It is concerned with physical and psychological integrity and empowerment.
Human dignity is harmed by unfair treatment premised upon personal traits
or circumstances which do not relate to individual needs, capacities,
or merits. It is enhanced by laws which are sensitive to the needs, capacities,
and merits of different individuals, taking into account the context underlying
their differences. Human dignity is harmed when individuals and groups
are marginalized, ignored, or devalued, and is enhanced when laws recognize
the full place of all individuals and groups within Canadian society."
"This
is not a case of the government balancing the interests of competing groups.
Allowing same-sex couples to marry does not result in a corresponding
deprivation to opposite-sex couples. Nor is this a case of balancing the
rights of same-sex couples against the rights of religious groups who
oppose same-sex marriage ... the Charter ensures that religious
groups have the option of refusing to solemnize same-sex marriages. The
equality guarantee, however, ensures that the beliefs and practices of
various religious groups are not imposed on persons who do not share those
views."
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Legal - OntarioThe
morning after - A new reality Nearly two dozen homosexual couples applied
for marriage licenses Wednesday, taking advantage of a court ruling that
led to Canada's first legal same-sex wedding the day before. City spokesman
Brad Ross said 18 of the couples were from Toronto and the rest from southern
Ontario. "Leslie Thompson, executive director
for the Affirmations Lesbian and Gay Community Center in Ferndale, said
she wouldn't be surprised if many gay couples from southeastern Michigan
seek a marriage license in Windsor, just to have their unions recognized."
Our second toast was offered with thanks for the support of MCC Toronto and the team of lawyers at McGowan Elliott and Kim. There were more toasts to the justices, family, friends, supporters ... and then eventually we were alone to finish the bottle together.
It was a wonderful evening with many stories from this long and eventful journey. We also marveled at the implications of the day ... Can't the federal government stop this? No. Once again, the Canadian government lagged behind in delivering rights to gays and lesbians and so, yesterday, the justices did their job and protected the Canadian Charter. Further, the rights have already been exercised, and accepted by Ontario, Canada's most populous province. Toronto began issuing marriage licences to same-sex couples yesterday. Ottawa started today. All will follow, in this province, and all others very soon. Government options:
Can't Ralph Klein and Alberta stop this? No. Alberta can only invoke the notwithstanding clause on provincial matters - the solemnization of marriage. The capacity to marriage is controlled by the federal government. Alberta has no power over federal law, as Mr. Klein will soon discover. He may huff and puff but he will not blow the Charter down. Couples from anywhere can marry in Ontario? Yes. The Court of
Appeal for Ontario delivered an undiluted, full and equal version of our
holy grail: marriage. It goes furth In Ontario, and soon Canada, same-sex married couples will have 100% full and equal rights (and obligations) of opposite-sex couples. No hedging, no hold-backs. One marriage for all, including anyone who wishes to make Ontario their romance destination. The province will marry foriegn visitors too. Divorce, however, requires one-year of residency in Ontario, for at least one spouse, in the year prior to Ontario court action to end the marriage. The decision is a serious one of consequence. Recognition of Canadian same-sex marriages in foreign countries will be the next challenge faced by cross-boarder couples. Already, American same-sex marriage advocates, in a number of states, are planning their strategies with intentions of starting in Ontario and ending in court in their home state or country. We have received notes from American supporters, asking for advice. Lawyer Bruce Walker is kindly responding to these enquiries, with something like: "The usual method is to obtain a marriage license from the appropriate clerk at a city hall in Ontario. The fee for this is currently $110.00. Having met the criteria to obtain a marriage licence, you would then arrange with someone licenced to solemnize marriages in Ontario. This would be either a clergyperson or a justice of the Ontario Court. Your marriage would then be solemnized in a marriage ceremony. The problem would lie in having your marriage recognized by another jurisdiction, such as Orlando, Florida. Just whether or how this might turn out is not clear at this time.Also, marriage conveys no automatic right of residency in Canada. In fact, if you have lived together as common-law spouses for one year you both might jointly apply to immigrate to Canada as common-law spouses at this time. The Government of Canada web-site for Citizenship and Immigration is very helpful. " The federal government has still not responded, but actions speak louder than words. Same-sex couples across the province are obtaining their marriage licences. A gracious response from the Liberal Canadian government is expected soon. There is still time to join the celebration. Court
of appeal gives immediate remedy: "... this case is ultimately about
the recognition and protection of human dignity and equality in the context
of the social structures available to conjugal couples in Canada ... the
question at the heart of this appeal is whether excluding same-sex couples
from another of the most basic elements of civic life - marriage - infringes
human dignity and violates the Canadian Constitution." Today, at 9:30 a.m., the Court of Appeal for Ontario decided
that there was no reason to make same-sex couples wait any longer for
their rights. In a unanimous 3-0 decision, the court concurred with the
previous Ontario divisional court ruling that declared it was unconstitutional
to deny same-sex couples the right to marry. However unlike the lower
court, Justices McMurtry, MacPherson and Gillese found no reason to make
same-sex couples wait to enjoy their new won freedoms: The Court of Appeal for Ontario embraced a remedy that was first proposed by Justice Laforme in a minority view in Ontario divisional court. Today's decision said: "To remedy the infringement of these constitutional rights, we:
Marriage rights exercised hours after decision
Shortly after the decision was announced, the City of Toronto issued a statement that said, "Today's ruling allows any couple in the City of Toronto who meet the application requirements for marriage to obtain a marriage licence." Michael Leshner and Michael Stark received their marriage licence from the city. They were subsequently married by a judge in chambers shortly after 2:30 p.m. In rendering their decision the three justice panel was very clear in rejecting the arguments advanced by the Attorney General of Canada, that marriage just "is" heterosexual. The court said this is "Circular reasoning" that "sidesteps" the real issues of equality. The Court of Appeal for Ontario said: "The proper approach is to examine the impact of the opposite-sex requirement on same-sex couples to determine whether defining marriage as an opposite-sex institution in discriminatory." The
court also rejected the arguments that because "A
law is not 'non-discriminatory' simply because it pursues a pressing objective
or impairs equality rights as little as possible. Much less is it 'non-discriminatory'
because it reflects an international consensus as to the appropriate limits
on equality rights" The decision of the Ontario Court of Appeal comes at a crucial moment. The government deadline to appeal the decision of the B.C. Court of Appeal has not yet arrived and the Standing Committee on Justice and Human Rights is about to issue its report on same-sex unions. The decisiveness of the Ontario decision and the immediacy of its remedy adds more pressure on the government to stop fighting the inevitable. The Prime Minister and the Justice Minister should act now. They'll be in good company, most notably ten justices, in four court cases, in a row. Congratulations to newlyweds and future weds in Ontario, as couples across Canada who will soon enjoy this rite and/or right. Our heartfelt appreciation to the Metropolitan Community Church of Toronto, McGowan Elliott & Kim, Epstein Cole, intervenors, witnesses, consultants, supporters and friends. We are deeply grateful for the wisdom of the Court of Appeal for Ontario, the Ontario divisional court, and the courts in British Columbia and Quebec.
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