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Court File No. 684/00
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HALPERN et al
CANADA (A.G.) et al
Court File No. 39/2001
A N D B E T W E E N:
CANADA (A.G.) et al
AMENDED FACTUM OF THE INTERVENER
EGALE CANADA INC.
SACK GOLDBLATT MITCHELL
PART I—THE FACTS
1 EGALE Canada Inc. (“EGALE”) is this country’s only national equality rights organization advocating for lesbians, gays and bisexuals. It was founded in 1986 and has a large, broad-based membership, drawn from every province and territory of Canada. EGALE takes the position that any restriction on the freedom of same-sex partners to marry is discriminatory, not only against the Applicant couples in this case, who have sought and been denied marriage licences, but also against every lesbian, gay and bisexual person in this country, irrespective of whether they are currently in a same-sex relationship, or whether they wish to marry their same-sex partner.
2 EGALE accepts and relies upon the facts outlined in the facta of the Applicant couples and of the Metropolitan Community Church of Toronto (“MCCT”). In addition, EGALE relies on the following facts, which are relevant to the larger social and political context in which the Applicants’ claim arises.
3 Historically, both federal and provincial legislation granted numerous spousal rights and obligations exclusively to married persons. Over time, most1 of those rights and obligations were extended to unmarried cohabiting heterosexual partners and, more recently, to cohabiting same-sex partners.
4 Last year, Parliament enacted the Modernization of Benefits and Obligations Act (hereafter “Bill C-23”), which amended 68 federal statutes. As a result, federal laws2 no longer differentiate between the rights and obligations of married spouses and those of common law partners, and same-sex couples qualify as common law partners as soon as they satisfy the statutory one year minimum cohabitation requirement or, in some cases, immediately upon cohabitation if they co-parent a child.Modernization of Benefits and Obligations Act, S.C. 2000, c.12
5 Several provincial legislatures have also extended spousal rights and responsibilities to cohabiting same-sex partners. In Ontario and Quebec, this was done by means of omnibus legislation in 1999, which effected sweeping reform to equalize the rights and responsibilities of same-sex and heterosexual unmarried partners. A multitude of benefits, which were once reserved exclusively to heterosexual couples (eg. dependant’s relief, workers’ compensation and criminal injuries compensation benefits, etc.) are now equally available to same-sex couples who satisfy the provinces’ minimum cohabitation requirements. In Ontario, the statutory minimum cohabitation period is generally three years (except, in some cases, where the couple co-parent a child).An Act to amend certain statutes because of the Supreme Court of Canada decision in M. v. H., S.O. 1999, c.6; An Act to amend various legislative provisions concerning de facto spouses, S.Q. 1999, c.14
6 On July 6, 2001, omnibus legislation received Royal Assent in Saskatchewan, which not only equalized the benefits and obligations of unmarried heterosexual and same-sex partners, but also granted cohabiting common law partners (including same-sex partners) many of the benefits enjoyed by married spouses. The legislation covers such areas as adoption, spousal support, inheritance rights, pensions, survivor benefits and division of matrimonial property. Also on July 6, 2001, omnibus legislation received Royal Assent in Manitoba, amending numerous provincial statutes to extend spousal rights and responsibilities to cohabiting same-sex couples in areas such as superannuation, dependant’s relief, family maintenance, survivor’s benefits, pension benefits and workers’ compensation benefits.The Miscellaneous Statutes (Domestic Relations) Amendment Act, 2001, S.S. 2001, c.50; The Miscellaneous Statutes (Domestic Relations) Amendment Act, 2001 (no. 2), S.S. 2001, c.51; An Act to comply with the Supreme Court of Canada decision in M. v. H., S.M. 2001, c.37
7 In Nova Scotia, the provincial Legislature adopted a slightly different approach to legislative reform in respect of same-sex couples. Like other provinces, Nova Scotia amended numerous statutes to extend to same-sex partners the rights and responsibilities previously afforded only to heterosexual partners by including same-sex partners in statutory definitions of “common-law partner” (which specify a minimum cohabitation requirement of one or two years, depending on the statute). However, Nova Scotia also recently amended its Vital Statistics Act to permit “two individuals who are cohabiting or intend to cohabit in a conjugal relationship” to make a “domestic-partner declaration” which, once registered, immediately confers upon each domestic-partner the same rights and obligations as a married spouse under 12 provincial statutes, including the Fatal Injuries Act, the Intestate Succession Act, and the Matrimonial Property Act.Law Reform (2000) Act, S.N.S. 2000, c.29
8 In British Columbia, legislative reform occurred in a more piecemeal fashion, through a succession of individual statutory amendments, but the result was no less comprehensive. In that province, same-sex partners who satisfy a minimum two year cohabitation requirement have access to a number of statutory benefits that were once the exclusive domain of married spouses, such as intestate succession rights. Legislative changes have also been made in respect of support obligations, guardianship, adoption, pension, medical decision-making and other rights to confer equal benefits and responsibilities upon cohabiting same-sex and heterosexual unmarried partners.Adoption Act, R.S.B.C. 1996, c.5, s.5(1); Health Care (Consent) and Care Facility (Admission) Act, R.S.B.C. 1996, c.181; Estate Administration Act, R.S.B.C. 1996, c.122; Adult Guardianship Act, R.S.B.C. 1996, c.6; Family Maintenance Enforcement Act, R.S.B.C. 1996, c. 122; Family Relations Amendment Act 1997, S.B.C. 1997, c.20;Pensions Statute Amendment Act (No. 2) 1998, S.B.C. 1998, c.40; Definition of Spouse Amendment Act, 1999, S.B.C. 1999, c. 29; Definition of Spouse Amendment Act, 2000, S.B.C. 2000, c. 24
9 Although considerable social and legal advances have been achieved over the past three decades to promote the equality of lesbians, gays and bisexuals in Canadian society, it is undeniable that we continue to suffer social and political marginalization. The disadvantaged position that we occupy relative to the heterosexual population in this country is largely due to the legacy of historical persecution, but is also due to ongoing, contemporary discrimination that we continue to endure.
10 The historical record of discrimination against members of our communities has been acknowledged by the Supreme Court of Canada and need not be elaborated in detail. Suffice to note that, between 1892 and 1969, lesbian and gay sexual expression was criminalized by penal laws that rendered gay men vulnerable to indefinite incarceration as “dangerous sexual offenders”; prior to 1973, homosexuality was considered a psychiatric disorder and lesbians and gay men were subjected to conversion “therapies”, including electroshock treatment; in the 1960s and 1970s, the R.C.M.P. investigated the homosexuality of thousands of men and, as a result, scores of gay federal civil servants resigned or were dismissed from their employment without just cause; from 1952 to 1977, lesbians, gays and bisexuals were prohibited entry to this country and those who concealed their sexual orientation in order to immigrate were forced to live here under constant threat of exposure and deportation; prior to 1992, lesbians, gays and bisexuals were not permitted to serve openly in the Canadian Armed Forces; for many years, governments, employers and insurers uniformly denied same-sex partners spousal benefits; and, until relatively recently, we were not even afforded the basic protection of provincial and federal statutory prohibitions against such human rights violations.Egan v. Canada,  2 S.C.R. 513 at 600-601; Klippert v. The Queen,  S.C.R. 822; Haig v. Canada (1991), 5 O.R. (3d) 245 (C.A.); Nfld. and Labrador (H.R.C.) v. Nfld. and Labrador (Minister of Employment and Labour Relations),  N.J. No.283 (QL) (Nfld.S.C.); Vriend v. Alberta,  1 S.C.R. 493
11 Although many of the discriminatory laws and practices that violated our equality rights have been repealed and/or successfully challenged in the courts—and contemporary public opinion is considerably more tolerant of lesbianism, homosexuality and bisexuality than it once was—we nevertheless continue to suffer marginalization and inequality in many aspects of our lives. Among other things, we must endure the harm of prejudicial stereotypes, such as the myths that we do not parent and/or are unfit parents. Although the once-prevalent pejorative portrayals of “homosexuals” as immoral deviants, sexual predators and child-molesters have been widely discredited by informed public discourse, some people still believe them, and many other stereotypes about lesbians, gays and bisexuals persist. Of particular relevance to the claim in this case are stereotypes about same-sex conjugal relationships, which continue to be (mis)perceived by many people as inherently dysfunctional and as less loving, stable, enduring and committed than heterosexual relationships.Affidavit of Barry Adam, paras.30-45; Affidavit of Rosemary Barnes, Exh.B, pp.20-26
12 The devaluation of same-sex relationships can be contrasted with the elevated social and legal status afforded to the relationships of married heterosexual couples. Although the traditional idealized conception of marriage as the ultimate relationship model to which everyone should conform (or at least aspire) has been criticized from a variety of perspectives, marriage remains a highly valued social institution in our culture. Granted, public opinion with respect to marriage has evolved, such that conservative views about the purported immorality of non-marital cohabitation (“living in sin”), the so-called illegitimacy of children born out-of-wedlock (“bastards”), and the social stigma of divorce are much less prevalent today than they once were—still, it cannot seriously be contended that marriage is suffering a fate of obsolescence or insignificance in contemporary Canadian society. Irrespective of whether one supports, condemns or is indifferent to the institution of marriage, one cannot deny its cultural and social significance, both historically and currently. Married couples in Canada continue to enjoy a privileged status, not only in respect of the legal rights and responsibilities that flow from matrimony, but also in respect of myriad other tangible and intangible benefits, not the least of which is the social approbation that they receive. This reality is a key contextual factor that must inform the analysis of the equality claims in this case.Miron v. Trudel,  2 S.C.R. 418 at 498
PART II—ISSUES AND THE LAW
13 In addition to the within submissions, EGALE adopts and relies upon the submissions made by the Applicant couples and the MCCT in relation to the legal issues in this case. The following submissions assume that the common law restricts the freedom of same-sex partners to marry; they are therefore made in the alternative to our primary position that there is no statutory or common law bar to same-sex marriage in Canada.
A. Any Restriction Against Same-Sex Marriage Violates Section 15 of the Charter
14 Lesbians, gays and bisexuals are subjected to differential treatment within the meaning of s.15 of the Charter because we do not have access to the same range of relationship options available to heterosexuals; specifically, we are denied the freedom to marry our conjugal partner. The common law distinguishes between the Applicants and others on the basis of a personal characteristic, namely sexual orientation, which is a ground analogous to those that are enumerated in s.15 of the Charter.EGALE Canada Inc. v. A-G Canada,  BCSC 135, at paras. 160 and 167-169
15 The question for this Court to decide is whether this differential treatment discriminates against the Applicants (and other lesbians, gays and bisexuals) in a substantive sense, namely in a manner that violates our “essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice.” We submit that it does.Andrews v. Law Society of B.C.,  1 S.C.R. 143 at 171; Egan v. Canada,  2 S.C.R. 513 at 583-584; Eldridge v. B.C. (A.G.),  3 S.C.R. 624 at 666-667; Vriend v. Alberta,  1 S.C.R. 493 at 535; Law v. Canada,  1 S.C.R. 497 at 518-519 and 524-531; M. v. H.,  2 S.C.R. 3 at 26 and 46
16 The restriction against same-sex marriage denies lesbians, gays and bisexuals equal benefit of the law because it denies us the freedom to make a fundamental choice about a deeply personal matter. When individuals enter into an intimate conjugal relationship, they make important decisions about how the relationship will be structured, including such things as whether the partners will live together, whether they will have children, whether they will both work outside the home, etc. All of these decisions have profound personal, social and economic implications, but some of them also have legal implications. For example, choosing to live together will give rise to a host of spousal rights and obligations after a statutorily prescribed period of time. For heterosexual couples, choosing to marry is also a decision that has legal implications, insofar as the spouses thereby immediately acquire certain legally-enforceable benefits and responsibilities in respect of each other and third parties.
17 Since same-sex partners are denied the freedom to marry, lesbians, gays and bisexuals do not have access to the same range of relationship options available to heterosexual partners. We are limited in our choices as to how we will structure our relationships and that limitation has legal, as well as personal and social consequences.
18 Without the freedom to marry, we are denied equal access to the legal rights and responsibilities enjoyed by married spouses. Although sweeping legal reforms at both federal and provincial levels have reduced the disparities between the rights and obligations of married spouses, unmarried heterosexual partners and same-sex partners, there are still certain legal benefits that same-sex partners are denied because of the restriction on our freedom to marry. For example, same-sex partners who do not live together cannot qualify for the spousal benefits covered by Bill C-23 because a mandatory one year cohabitation requirement is imposed on all unmarried partners. Thus same-sex partners who are required to live in different cities due to personal circumstances, such as employment obligations or family demands, cannot access the spousal rights and responsibilities afforded by federal law, whereas heterosexual partners in the same circumstances can overcome the cohabitation barrier and access the benefits by exercising their option to marry.
19 Even same-sex couples who can and do live together are denied equal access to federally regulated spousal benefits because of the restriction on our freedom to marry. Cohabiting same-sex partners have no choice but to wait one year in order to qualify for the benefits covered by Bill C-23, whereas heterosexual partners can obtain immediate access to the benefits because they have the option to marry.Andrews v. Law Society of B.C.,  1 S.C.R. 143 at 183; Affidavit of Brent Hawkes, para.52
20 At the provincial level, the inability to overcome waiting periods and barriers imposed by mandatory cohabitation requirements is not the only legal disadvantage suffered by same-sex couples as a result of the restriction on our freedom to marry. In every province, there are still some statutes that grant benefits exclusively to married spouses, such that a same-sex couple can never acquire them, no matter how long the partners cohabit (eg. intestate succession rights and matrimonial property rights are not available to unmarried partners in most provinces).
21 Furthermore, the mandatory minimum cohabitation criteria for common law status vary from province to province, as do the rights and responsibilities of common law partners, such that there is considerable uncertainty regarding the precise legal status of unmarried couples. This uncertainty is exacerbated if a couple moves between provinces. For example, unmarried conjugal partners (whether heterosexual or same-sex) who resided together in British Columbia for two years would qualify for spousal support in the event of a separation, or for intestate succession in the event of one of their deaths—but if they moved to Ontario, they would no longer qualify for spousal support, until they had lived together for at least three years, and even then, they would not have the benefit of intestate succession rights, which are reserved exclusively to married spouses in Ontario. Heterosexual partners can avoid such fluctuation in their rights, and the general uncertainty that accompanies common law status, by exercising the option to marry. Same-sex partners, in contrast, are denied that option and are therefore denied the opportunity to achieve the same degree of clarity and certainty in respect of their rights and obligations.Affidavit of John Fisher, paras.27-35; Affidavit of Rosemary Barnes, Exh.B, pp.15-19
22 As the above examples demonstrate, the benefit withheld from lesbians, gays and bisexuals as a result of the restriction on our freedom to marry is the benefit of having the freedom to choose how to structure our conjugal relationships. The denial of that freedom of choice has legal implications, as outlined above, but more importantly, it also has significant personal and social implications.
23 Decisions affecting an individual’s family life always involve profoundly personal choices. Obviously, the decision of whether or not to marry a conjugal partner is a deeply personal matter that has implications for an individual’s liberty, faith, sense of identity, self-image and degree of personal satisfaction. It is a choice that “belongs” with the individual and to deny lesbians, gays and bisexuals the freedom of making that choice is to deny us much more than a choice about whether we wish to assume certain legal responsibilities or acquire legal benefits available to married spouses. It denies us autonomy in respect of a matter that has consequential effects on our personal lives.
See also: Cross-examination of John Fisher, p.24(lines16-25), p.26 (lines 7-15), p.28 (lines 8-12), pp.58-61; Cross-examination of William Eskridge, p.76 (lines 6-19)
24 As Justice L’Heureux-Dubé remarked in Miron v. Trudel:
Miron v. Trudel,  2 S.C.R. 418 at 471
25 The Supreme Court of Canada has recognized that freedom of choice on important personal matters constitutes a benefit, the denial of which may trigger an infringement of s.15 of the Charter. In the Egan case, Justice Cory, writing for the majority of the Court, stated:
Egan v. Canada,  2 S.C.R. 513 at 593 (emphasis in original); R. v. Turpin,  1 S.C.R. 1296 at 1329-30
26 The evidentiary record in Egan established that, had John Nesbit qualified as Jim Egan’s “spouse” for the purpose of receiving a federal old age security pension, his provincial disability pension likely would have been discontinued (since he qualified for the latter as a single person) and the couple would have suffered a net economic loss in their combined income. The Federal Government argued that the impugned statutory definition of “spouse” therefore did not result in the denial of a benefit within the meaning of s.15 of the Charter. The majority of the Supreme Court of Canada rejected that argument as follows:
Similarly, in this case, denying the Applicant couples (and other same-sex couples) the right to choose whether or not to marry denies them equal benefit of the law.Egan v. Canada,  2 S.C.R. 513 at 593-594; EGALE Canada Inc. v. A-G Canada,  BCSC 135, at para.165
27 There are a number of “contextual factors” that may influence this Court’s determination of whether this denial of equal benefit of the law violates s.15. In Law, the Supreme Court of Canada ruled that “probably the most compelling factor favouring a conclusion that differential treatment...is truly discriminatory” is the existence of “pre-existing disadvantage, vulnerability, stereotyping, or prejudice experienced by the individual or group”. As Justice Iacobucci explained,
Law v. Canada,  1 S.C.R. 497 at 534-535 (emphasis added)
28 Given the historical persecution of lesbians, gays and bisexuals in this country, and the ongoing discrimination that we continue to endure, it is undeniable that the Applicants (and other lesbians, gays and bisexuals) are the subject of significant pre-existing disadvantage, vulnerability, stereotyping and prejudice. This was recognized by the Supreme Court of Canada in M. v. H.M. v. H.,  2 S.C.R. 3 at 55; Affidavit of Rosemary Barnes, Exh.B, pp.23-29
29 The impugned restriction against same-sex marriage contributes to the general vulnerability of lesbians, gays and bisexuals in society by perpetuating and reinforcing damaging stereotypes about same-sex relationships. In the Egan case, in the context of examining the effects of excluding same-sex partners from a statutory definition “spouse”, Justice Cory held that:
Egan v. Canada,  2 S.C.R. 513 at 604; EGALE Canada Inc. v. A-G Canada,  BCSC 135, at para.178
30 Similarly, in this case, the restriction against same-sex marriage perpetuates and reinforces harmful stereotypes by implying that lesbians, gays and bisexuals are incapable of forming lasting, loving, mutually supportive and committed same-sex relationships equivalent to those of married heterosexual couples. The restriction against same-sex marriage has the effect of making us feel as though our relationships are not valued and are judged less worthy than heterosexual relationships. It is hurtful and demeaning because it impugns our ability to love and to be committed partners. It therefore constitutes an affront to the dignity of all lesbians, gays and bisexuals, regardless of whether we are currently in a relationship, or whether we would personally choose to marry were we given the freedom to do so.
See also Affidavit of Susan Ehrlich, para.20; Affidavit of Rosemary Barnes, Exh.B, pp.19-35; Affidavit of Kevin Bourassa and Joe Varnell, para.4
31 The second contextual factor of relevance to the discrimination inquiry in this case is whether the restriction against same-sex marriage takes into account the needs, capacities and circumstances of the Applicants and of other same-sex partners. As Justice Iacobucci stated in Law,
Law v. Canada,  1 S.C.R. 497 at 538
32 The restriction against same-sex marriage does not take into account the actual situation of the Applicant couples and other individuals in same-sex relationships. The evidence in this case demonstrates that the reasons many same-sex partners have for wanting to marry are the same as those of heterosexual partners, including romance, strengthening family support, social recognition, ensuring legal protection, financial and emotional security, religious or spiritual fulfillment, providing a supportive environment for children and strengthening the commitment to the relationship. Moreover, the social science evidence demonstrates that same-sex conjugal relationships have the same range of characteristics and internal dynamics as heterosexual conjugal relationships, yet the common law rules regarding capacity to marry do not take this into account. Denying same-sex partners the freedom to marry does not properly accommodate the needs, capacities, and circumstances of lesbians, gays and bisexuals, which lends support to the claim that the restriction against same-sex marriage is discriminatory.
See also Affidavit of Rosemary Barnes, Exh.B, pp.1-11; Affidavit of Margrit Eichler, paras.26-39; Affidavit of Miriam Kaufman, paras.3-10; Affidavit of John Fisher, paras.25-26
33 The third and final contextual factor of relevance to the discrimination inquiry in this case is the nature of the interest affected by the restriction against same-sex marriage. The Supreme Court of Canada has ruled that
The differential treatment in this case has all three of the above-mentioned discriminatory effects, namely: (1) it restricts access to one of the most fundamental institutions in our society; (2) it denies lesbians, gays and bisexuals the autonomy to make our own choices about a deeply personal matter, which is a basic aspect of full membership in Canadian society; and (3) it completely fails to recognize that lesbian and gay relationships are worthy of marital status.M. v. H.,  2 S.C.R. 3 at 57; Law v. Canada,  1 S.C.R. 497 at 540; Affidavit of Barry Adam, paras.18-29; Affidavit of Cheshire Calhoun, Exh.B
34 In M. v. H., a case involving the exclusion of same-sex partners from the spousal support provisions of Ontario’s Family Law Act, the Supreme Court of Canada ruled that the “societal significance of the benefit conferred by the statute cannot be overemphasized.” The Court accepted the submissions of EGALE that the statute’s failure to recognize same-sex partners as “spouses” within the meaning of the Act “perpetuates the disadvantages suffered by individuals in same-sex relationships and contributes to the erasure of their existence.” Similarly, in Egan, the Court held that the heterosexual definition of “spouse” in the Old Age Security Act “confers a significant benefit by providing state recognition of the legitimacy of a particular status. The denial of that recognition may have a serious detrimental effect upon the sense of self-worth and dignity of members of a group because it stigmatizes them.”M. v. H.,  2 S.C.R. 3 at 57-58; Egan v. Canada,  2 S.C.R. 513 at 594
35 In this case, the significance of the benefit is even greater than that which was at issue in Egan and M. v. H., because the decision of whether or not to marry is such a fundamental personal choice and marriage is such a core societal institution. As Justice McLachlin (as she then was) noted in Miron v. Trudel, the choice of whether to marry or to cohabit with a conjugal partner in a common law relationship “touches the individual’s freedom to live life with the mate of one’s choice in the fashion of one’s choice. This is a matter of defining importance to individuals.”Miron v. Trudel,  2 S.C.R. 418 at 497
36 The importance of marriage as a societal institution is undeniable. Married spouses enjoy a privileged status in Canadian society that is not simply predicated on the legal rights and obligations that flow from their marital status. Marital status is accompanied by many intangible benefits, which are not afforded by statute, but rather by social custom and tradition. Foremost among these is the public recognition of a couple’s commitment to one another. Marital status affords relationship affirmation and validation, as well as social approbation, that far exceed the legitimacy conferred by statutory common law partnership status. Exclusion from the institution of marriage therefore has a pronounced stigmatizing effect.
See also Affidavit of Rosemary Barnes, Exh.B, pp.11-14; Affidavit of Ellen Lewin, Exh.B
37 Large segments of the Canadian public (including many lesbians, gays and bisexuals) continue to subscribe to the belief that marriage represents an ideal. Despite considerable controversy with respect to social science evidence to the contrary, many people still view common law partnerships as less committed and less stable than marital relationships, and perceive that children’s interests are best served by being raised by two parents who are married. Some people still subscribe to the view that sex outside marriage is morally wrong. While these traditional views have been criticized and are certainly less prevalent than they were in decades past, they continue to influence public opinion, such that couples who choose to marry still enjoy the benefits of widespread social approbation.
38 Moreover, marriage represents an important personal aspiration for many people, including many lesbians, gays and bisexuals. For some, it is a source of security and personal contentment to know that their conjugal partner is willing to make a marital commitment to their relationship. For others, marriage may hold particular significance due to cultural and/or religious beliefs.
See also Affidavit of Brent Hawkes, paras.46-48; Affidavit of George Allworth, paras.8-9; Affidavit of Michael Stark, paras.6-7; Affidavit of Barbara McDowall, para.16
39 Certainly, there are some lesbians, gays and bisexuals who do not wish to get married, just as there are heterosexuals who do not wish to get married, but heterosexuals enjoy the inherent dignity of having the freedom to make their own choices over such a fundamental personal decision. As the Supreme Court of Canada has ruled, a significant “aspect of respect for human dignity on which the Charter is founded is the right to make fundamental personal decisions without interference from the state.” In R. v. Morgentaler, Justice Wilson stated:
This statement was recently reaffirmed by the Supreme Court of Canada in Blencoe v. B.C. (H.R.C.).R. v. Morgentaler,  1 S.C.R. 30 at 166; Blencoe v. B.C. (H.R.C.),  2 S.C.R. 307 at 341
40 Denying same-sex partners the freedom to marry demeans the dignity of all lesbians, gays and bisexuals—regardless of whether we are single or in a conjugal relationship, and irrespective of our own personal views on marriage—just as the miscegenation statutes that were once in force in the United States constituted an affront to the dignity of all Black people (not just those who were in interracial relationships or who wished to marry a person of a different race). In his reasoning for the majority of the Supreme Court of Canada in Egan, Justice Cory emphasized the blatantly discriminatory effects of the rights-infringement at issue in that case by querying what the result would be if the old age spousal pension were denied to couples because the individuals were of different races or different religions. “The public outcry would,” he predicted, “be immediate and well merited.” Similarly, if inter-faith or inter-racial couples, or Jews or Aboriginal persons were denied the freedom to marry, the discriminatory effect of the law would immediately be recognized. The effect is no less discriminatory when it is borne by lesbians, gays and bisexuals.Egan v. Canada,  2 S.C.R. 513 at 594; Affidavit of Miriam Kaufman, paras.11-13; Affidavit of John Fisher, paras.21-22
41 According to Supreme Court of Canada jurisprudence, the focus of the discrimination inquiry under s.15 of the Charter “must always remain upon the central question of whether, viewed from the perspective of the claimant, the differential treatment imposed by the legislation has the effect of violating human dignity.” This does not entail a purely subjective inquiry (i.e., it is not sufficient for the Applicants simply to assert, without more, that their dignity has been adversely affected), but nor does it entail a purely objective assessment. As Justice Iacobucci explained in Law, all of the claimant group’s “traits, history, and circumstances must be considered in evaluating whether a reasonable person in circumstances similar to those of the claimant would find that the legislation which imposes differential treatment has the effect of demeaning his or her dignity.”Law v. Canada,  1 S.C.R. 497 at 532-533 and 538 (emphasis added)
42 The Federal Government’s and Respondent Interveners’ (“the Respondents”) arguments disregard the claimant group’s perspective about what is most important in this case, namely the denial of freedom to make a fundamental personal choice (even though some same-sex partners would choose not to exercise the right to marry if it were accorded to them) and the denial of access to the status and other intangible social benefits (not merely the statutory rights and obligations) that marriage (and only marriage) confers.
43 The Respondents contend that the existence of diverse relationship structures (i.e., marriage, common law partnership and, in Nova Scotia, registered domestic partnership) is not itself discriminatory, provided that conjugal partners in the various relationship options are accorded substantially the same rights. EGALE agrees that a diversity of relationship options, without more, is not itself discriminatory, but excluding a class of individuals from access to one of the options is discriminatory. Same-sex partners are not only denied access to the full range of relationship options available to heterosexual partners, we are specifically denied access to the most cherished and socially esteemed option, namely marriage. Our relationships are thereby relegated to second-class status as part of a “separate” regime, distinct from marriage. Granted, some heterosexuals consciously choose not to marry and there is nothing inherently inferior, subordinate, or unworthy about their common law relationships, but that is because there is dignity in the fact that they have exercised their own choice. Some lesbians, gays and bisexuals would similarly choose not to marry, were we afforded the freedom to do so, but to deprive us of the choice constitutes an affront to our dignity.
See also Affidavit of Susan Ehrlich, para.20; Affidavit of David Rayside, paras.25-30; Affidavit of Ellen Lewin, Exh.B; Cross-examination of John Fisher, p.60 (lines 16-24)
44 The 1954 decision of the United States Supreme Court in Brown v. Board of Education is apposite this issue. By the time the four cases involved in that appeal reached the Supreme Court, the states whose segregation statutes were at issue had made considerable efforts and devoted significant resources to improve facilities in the Black schools, such that the Court found that “the Negro and white schools involved have been equalized, or are being equalized, with respect to buildings, curricula, qualifications and salaries of teachers, and other ‘tangible’ factors.” Nevertheless, the Court ruled that the segregation of the schools on the basis of race violated the equal protection laws guaranteed by the Fourteenth Amendment of the United States Constitution, concluding that “[s]eparate educational facilities are inherently unequal” because to separate students “from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone.”Brown v. Board of Education 347 U.S. 483 (1954)
45 Similarly, as Justice Linden stated in his dissenting opinion in the Federal Court of Appeal in Egan, which was upheld by a majority of the Supreme Court of Canada in respect of his ruling on s.15, and was subsequently followed by the Federal Court in Canada v. Moore:
Egan v. Canada,  3 F.C. 401 (C.A.) at para.59; Canada v. Moore,  4 F.C. 585 at para.61; Affidavit of Andrew Koppelman, paras.18-19; Affidavit of Cheshire Calhoun, Exh.B, part B “Defending Marriage”
46 Finally, any suggestion that it is not legitimate or reasonable for the Applicants to feel demeaned by the restriction against same-sex marriage ignores the history and circumstances of lesbian and gay existence. All lesbians, gays and bisexuals in this country—whether or not we personally wish to marry—are aware that we are denied access to the cherished social status afforded by marriage simply because of our sexual orientation. For a community that has historically been criminalized, subjected to forcible psychiatric treatment, denied the right to immigrate, denied the protection of human rights legislation and left unprotected by federal hate propaganda laws, the denial of the freedom to marry represents one more indignity visited upon us in a history of persecution, exclusion and non-recognition. For those lesbians, gays and bisexuals who are seeking to “come out” and are struggling to accept their sexual orientation, the restriction against same-sex marriage sends a powerful sinister message of inequality, undermining their self-esteem and reinforcing their shame, invisibility and fear of rejection.Affidavit of Miriam Kaufman, paras.26-31; Cross-examination of John Fisher, p.61-62 (Q.152)
47 The Respondents’ s.15 argument incorrectly assumes that differential treatment of an historically disadvantaged group does not constitute discrimination when it has ancient religious and philosophical roots, or when it has been widely practiced by many societies over a long period of time. On the contrary, the discriminatory effects of such differential treatment are often more odious precisely because the differential treatment has a long pedigree. As Justice Wilson stated in R. v. Turpin:
R. v. Turpin,  1 S.C.R. 1296 at 1328
48 The Respondents assert that marriage is universally understood across time, societies, religions and cultures as a heterosexual institution. The accuracy of this assertion is questionable, in light of the evidence in the record of same-sex marriages that have existed in various cultures at different times. Given the challenge of interpreting the social meaning of relationship rituals, ceremonies, linguistic practices and societal institutions across cultures and time, it may be difficult to appreciate and understand, from a contemporary North American perspective, the precise cultural and legal significance of same-sex commitment rituals, akin to weddings, in ancient Greece, Rome, and Egypt, in Asian, African, and Native American cultures, or in other societies at other times. One conclusion that is, however, incontrovertible, is that same-sex marriages have been at least conceivable to many people, in a wide range of cultures, across many periods of time. In that regard, the historical evidence in the record before this Court refutes the Respondents’ assertion that marriage is universally understood to be heterosexual.Affidavit of Jacqueline Murray, Exh.B, para.10-11, Affidavit of Barry Adam, paras.1-5; Affidavit of William Eskridge and Supplementary Affidavit of William Eskridge, paras.4-9
49 Moreover, in the present era, an exclusively heterosexual definition of marriage is not uniformly accepted throughout the world, nor even within Canada. In the Netherlands, same-sex partners enjoy the freedom to marry pursuant to recently enacted Dutch legislation. In Hawaii and Alaska, state courts have ruled in favour of legalizing same-sex marriage. In Canada, a strong judicial dissent was issued in Layland v. Ontario by Judge Greer, who would have recognized same-sex marriage in 1993. Public opinion polls demonstrate increasing support for providing same-sex couples with equal marriage rights; the latest polls confirm that a significant majority (65%) of Canadians hold that view.3 Editorial writers for national newspapers have condemned the restriction against same-sex marriage as discriminatory. Prior to the last election in British Columbia, the Attorney General in that province explicitly endorsed same-sex marriage, calling upon the Federal Government to amend the law and issuing legal proceedings against the Federal Government in support of the right of same-sex couples to marry. All of these facts demonstrate that it is patently false to claim that marriage is universally understood to be restricted to heterosexuals only.Affidavit of John Fisher, paras.79-80, and Exh. D and E; Cross-examination of John Fisher, p.53 (lines 7-16) and Exh.5; Affidavit of Evan Wolfson, para.5; Supplementary Affidavit of W. Eskridge, para.3; Layland v. Ontario (1993), 14 O.R. (3d) 658 (Div. Ct.) at 667-681
50 More importantly, the fact that a discriminatory practice is widespread, or that it has existed for a long time, does not render it any less discriminatory. For example, the prohibition against inter-racial marriage in the United States, like the restriction against same-sex marriage in Canada, had ancient philosophical and religious roots. It was supported by a long legal tradition and popular public opinion. So-called “miscegenation” was prohibited by statute as early as 1664 and, at one time or another, 41 American colonies and states had such prohibitions in effect. When the Supreme Court ultimately invalidated miscegenation laws in Loving v. Virginia in 1967, they were still in force in 16 states. Even after Loving was decided, public opinion polls revealed that the majority of Americans remained opposed to interracial marriages and believed such marriages should be prohibited by law.Loving v. Virginia, 388 U.S. 1 (1967) at 6; Affidavit of Andrew Koppelman, at paras.20-22
51 The historical record demonstrates that the opponents of inter-racial marriage defended their position with many of the same arguments that are being advanced by the Respondents in this case. For example, the Respondents’ s.15 argument is premised on profoundly discriminatory and offensive assertions about how there are two “complementary” sexes in “nature”—the obvious implication being that there is something “unnatural” about same-sex unions. In that regard, their arguments are reminiscent of the racist justifications advanced by proponents of miscegenation statutes in the United States, who argued that races were “separate” by “nature”—the obvious implication being that there is something “unnatural” about interracial unions. Furthermore, although some religious institutions supported the abolition of miscegenation laws when the matter was considered by the United States Supreme Court in Loving in 1967, for generations before that, the opponents of interracial marriage successfully invoked religious justifications as well as “natural law” arguments to defend miscegenation prohibitions.State v. Gibson, 36 Ind. 389 at 404-405 (1871); Phil. & West Chester R.R. Co. v. Miles, 2 Am. L. Rev. 358 (Pa.1867); Green v. State, 29 Am. Rep. 739, at 742-7433 (1877); Kinney v. Commonwealth, 32 Am. Rep. 690, at 696 and 699 (1878); Affidavit of Andrew Koppelman
52 The religious underpinnings of the miscegenation prohibition, the widespread popularity of the racist view of human “nature” upon which it was conceived, its ancient philosophical roots and its legal pedigree did not render it any less offensive or discriminatory. Similarly, the fact that many religions, cultures, and societies may have, throughout many eras, subscribed to the view that same-sex couples should not be permitted to marry does not in any way diminish the discriminatory impact of the restriction against same-sex marriage in Canada today. On the contrary, the severity of the discriminatory effects is compounded by the systemic nature of the discrimination.
B. The Equality Rights Infringement Is Not Justifiable under Section 1 of the Charter
53 The onus of justifying an infringement of a Charter right rests with the party seeking to uphold the law. In RJR-MacDonald v. Canada, the Supreme Court of Canada stated that, in order to satisfy its onus under s.1 of the Charter,
RJR-MacDonald Inc. v. Canada (Attorney General),  3 S.C.R. 199 at 328-329 (emphasis in original)
54 Since this case concerns a challenge to a common law rule, the s.1 analysis does not call for the kind of deference that is sometimes appropriate when legislation is impugned. As Chief Justice Lamer (as he then was) made eminently clear in R. v. Robinson, “while decisions of our legislatures may be entitled to judicial deference under s.1 as a matter of policy, such deference is not required where we are being asked to review a law that we as judges have established.”R. v. Robinson,  1 S.C.R. 683 at 708-709
55 The Federal Government asserts that the restriction against same-sex marriage flows from the purpose of marriage, which it contends is to foster procreation and provide institutional support to families with children. The Government argues that same-sex partners are excluded from marriage because they do not have the biological capacity to conceive a child together. In conducting a s.1 analysis, this Court cannot simply accept the Government’s characterization of the objective, but rather must scrutinize the proffered objective in an effort to identify the genuine purpose of the impugned restrictive measure, as the Supreme Court of Canada did in M. v. H.M. v. H.,  2 S.C.R. 3 at 67-70
56 The historical record does not support the Government’s contention that procreation is the purpose of marriage. It was only relatively recently, when same-sex couples began to advance claims for equal recognition of their conjugal relationships (including equal access to marriage), that some courts began to identify procreation as the purpose of marriage. Earlier courts, which developed the common law rules regarding the essential validity of marriage and capacity to marry, did not regard procreation as the purpose of marriage.
57 For example, it is well-established in common law jurisprudence that a marriage is valid and not voidable despite the fact that one spouse refuses to have sexual intercourse, is infertile, or insists on using contraceptives when having sexual intercourse. It can reasonably be inferred from these annulment cases that procreation has not been considered by the courts to be the sole or primary purpose of the matrimonial contract. The same inference can be drawn from the jurisprudence involving annulment cases in which a husband is unable to consummate the marriage due to impotence resulting from advanced age. In such cases, Canadian courts have consistently ruled that the marriage is understood to be for the purpose of “companionship” and is therefore valid (and not voidable), notwithstanding the spouses’ inability to have sexual intercourse and, evidently, their inability to procreate.L. v. L.(1922), 38 T.L.R. 697; Hale v. Hale,  2 D.L.R. 1137 at 1138-1139 (Alta S.C.), aff’d  3 D.L.R. 481 (C.A.) at 482; Tice v. Tice,  O.R. 233 (H.C.) at 239, aff’d  2 D.L.R. 591 (C.A.); Heil v. Heil,  S.C.R. 160; W. v. W.,  1 W.W.R. 981 (B.C.C.A.) at 985-986; D. v. D. (1973), 3 O.R. 82 (H.C.J.); Norman v. Norman (1979), 9 R.F.L. (2d) 345 (Ont. U.F.C); Foster v. Foster,  2 D.L.R. 318 (B.C.S.C.)
58 Indeed, the House of Lords in Baxter v. Baxter explicitly held that procreation is not the principal end of marriage:
Baxter v. Baxter,  A.C. 274 at 286 (H.L.) (emphasis added)
59 In Baxter, a man sought to annul his marriage on the ground of non-consummation because his wife refused to have sexual intercourse with him unless he used a condom. The House of Lords denied the annulment, relying on the following passage from Lord Stair’s Institutions:
Baxter v. Baxter,  A.C. 274 at 286 (H.L.) at 289 (emphasis added)
60 As these cases demonstrate, neither actual procreation nor the ability to procreate is an essential element of a valid marriage at common law. British and Canadian courts historically have not regarded procreation as the primary purpose of marriage. Courts in the United States have similarly held that procreation is neither necessary nor fundamental to marriage.Affidavit of Evan Wolfson, paras.13-21
61 Thus EGALE submits that procreation is not the true purpose of the restriction against same-sex marriage, but rather is a mere pretext used to rationalize discrimination against lesbians, gays and bisexuals. The real, but unstated purpose of the restriction against same-sex marriage is to entrench and preserve the exclusive privileged status of heterosexual conjugal relationships in society. Since this objective is itself discriminatory and contrary to Charter values, it cannot be construed as pressing or substantial. Any justification based upon the belief that heterosexual relationships are superior to same-sex relationships must be rejected as being “fundamentally repugnant, because it would justify the law upon the very basis upon which it is attacked for violating” the Charter right.Big M Drug Mart Ltd. v. Canada,  1 S.C.R. 295 at 352-353; McKinney v. University of Guelph, 3 S.C.R. 229 at 303; Egan v. Canada,  2 S.C.R. 513 at 558 and 616
62 In the alternative to the above submissions, if this Court accepts that fostering procreation is the purpose of the restriction against same-sex marriage and that it is a pressing and substantial objective, then we submit that the impugned restriction is nevertheless unjustifiable under s.1 of the Charter. Any law that infringes Charter rights will only be upheld pursuant to s.1 if the party defending the impugned law demonstrates that the rights infringement is “reasonable”. In RJR-MacDonald, Justice McLachlin (as she then was) stated that the “question is not whether the measure is popular or accords with the current public opinion polls. The question is rather whether it can be justified by application of the processes of reason.”RJR-MacDonald Inc. v. Canada (Attorney General),  3 S.C.R. 199 at 328
63 In order to demonstrate reasonableness, the Respondents are required to satisfy all three components of the“proportionality test” developed in R. v. Oakes, including, inter alia, the “rational connection” criterion.4 Specifically, the Respondents must demonstrate that the impugned restriction against same-sex marriage is “carefully designed to achieve” the procreation objective. As the Supreme Court of Canada stated in Oakes, in order to survive s.1 scrutiny, the restrictive measure “must not be arbitrary, unfair or based on irrational considerations.” It is important to recall that a rational connection must be demonstrated through evidence and on the bases of reason and logic, not on the basis of stereotypical assumptions that have no evidentiary foundation.R. v. Oakes,  1 S.C.R. 103 at 139; RJR-MacDonald Inc. v. Canada (Attorney General),  3 S.C.R. 199 at 339; Egan v. Canada,  2 S.C.R. 513 at 610; Miron v. Trudel,  2 S.C.R. 418 at 478-79
64 Assuming, arguendo, that the purpose of marriage is to foster and provide institutional support for adult relationships that allow for the possibility of procreation and child-rearing, we submit that the restriction against same-sex marriage is not rationally connected to this objective. It is simply untenable to assert that granting same-sex couples the freedom to marry would either diminish the number of children conceived by heterosexual couples or reduce the quality of care with which heterosexual couples raise their children. Furthermore, same-sex couples have and raise children as a result of a variety of reproductive and parenting arrangements, none of which is unique to same-sex partners. Both same-sex and heterosexual couples foster children, adopt children, conceive children by means of assisted conception and surrogacy, and form blended families with children from previous relationships. The mere fact that many heterosexual couples also conceive children through heterosexual intercourse is hardly a rational basis for distinguishing between all heterosexual and same-sex couples by granting only the former access to the institutional supports of marriage.
See also Affidavit of Jerry Bigner, Exh.B; Affidavit of Judith Stacey and Timothy Biblarz; Affidavit of Miriam Kaufman, paras.3-10; Affidavit of Alison Kemper, para.7; Re K, (1995) 23 O.R. (3d) 679; Re A (Adoption),  A.J. No. 400 (QB) (QL); S.C.M. v. N.C.J.,  N.S.J. No.261 (N.S.S.C.—Family Division) (QL)
65 The contention that the restriction against same-sex marriage is rationally connected to the goal of providing institutional support for couples who have and raise children is, at best, a misconception based on a faulty stereotype that same-sex couples do not parent. Not only does the impugned restriction fail to advance the procreation objective, it actually impedes the achievement of that objective, because it excludes from marriage same-sex couples who are raising children, thereby denying their families access to the institutional support that marriage is supposed to provide.
See also Affidavit of Rosemary Barnes, Exh.B, pp.36-40; Affidavit of Miriam Kaufman, paras.14-25; Affidavit of Hedy Halpern, paras.7-16; Affidavit of Gail Donnelly, para.15; Affidavit of Alison Kemper, paras.7-21
66 The arbitrariness of the restriction against same-sex marriage (in relation to the procreation objective) is also apparent from the fact that the common law does not exclude from marriage heterosexuals who do not or cannot have children. Heterosexual couples are permitted to marry even if they have no intention or possibility of procreating.5
67 Thus the restriction against same-sex marriage fails the rational connection test because it is both overinclusive (it allows non-procreative heterosexuals to marry) and underinclusive (it denies same-sex parents and intended-parents the right to marry).M. v. H.,  2 S.C.R. 3 at 75-76
68 The restriction against same-sex marriage also constitutes an excessive impairment of equality rights. According to Supreme Court of Canada jurisprudence, the “minimal impairment” criterion of the Oakes test imposes a particularly onerous burden on the Government in cases where a common law rule (as opposed to a statutory provision) has been found to violate Charter rights. In R. v. Swain, Chief Justice Lamer (as he then was) stated:
R. v. Swain,  1 S.C.R. 933 at 983-984 (emphasis added)
69 In this case, an absolute common law bar on the freedom of same-sex couples to marry does not constitute the “least intrusive” means by which the state could achieve the purported goal of providing institutional support to couples who have and raise children. On the contrary, this goal could easily be advanced without denying same-sex couples the freedom to marry. This is not a case in which the state is required to balance competing rights and interests. The rights and interests of heterosexuals would in no way be affected by granting same-sex couples the freedom to marry and, contrary to the assertion of the Interfaith Coalition, freedom of religion would not be threatened or jeopardized by legally sanctioning same-sex marriage. No religious body would be compelled to solemnize a same-sex marriage against its wishes and all religious people, of any faith, would continue to enjoy the freedom to hold and espouse their beliefs, including (where applicable) the belief that same-sex relationships are immoral and undeserving of marital status. Thus there is no need for any infringement of the equality rights of lesbians, gays and bisexuals, let alone one as intrusive and excessive as the impugned restrictions against same-sex marriage.
70 Finally, the Government has also failed to demonstrate that the restriction against same-sex marriage has any salutary effects, let alone effects that are sufficiently beneficial to outweigh its severe deleterious effects. As the Supreme Court of Canada held in RJR-MacDonald, “if the good which may be achieved by the law pales beside the seriousness of the infringement of rights which it works, that law cannot be considered reasonable or justified” under s.1 of the Charter.RJR-MacDonald Inc. v. Canada (Attorney General),  3 S.C.R. 199 at 327-328
71 In this case, as in the case of Vriend, “the deleterious effects of the exclusion... are numerous and clear.” As outlined in detail above, the restriction against same-sex marriage is an affront to the dignity of all lesbians, gays and bisexuals because it limits the range of relationship options available to us, thereby denying us the autonomy to choose for ourselves whether we wish to marry, and conveying the sinister message that we are unworthy of marriage. For those same-sex couples who do wish to marry, the impugned restriction represents a rejection of their personal aspirations and the denial of their dreams. Without equal access to the institution of marriage, the Applicants’ ability to celebrate their love and their lives on equal terms with their heterosexual counterparts is undermined.Vriend v. Alberta,  1 S.C.R. 493 at 562
72 The Respondents argue that legal reforms which result in social change must occur incrementally in order to avoid unpredictable consequences. In our submission, modifying the common law to permit same-sex marriage is an incremental change, which is not to suggest that it is a trivial or insignificant change. On the contrary, permitting same-sex marriages would contribute significantly to the advancement of equality for lesbians, gays and bisexuals in this country. It would nevertheless constitute an incremental change, in so far as it would represent the culmination of years of legal and social reforms that have already contributed to the advancement lesbian, gay and bisexual equality in Canada.
73 Over the past three decades, public opinion regarding homosexuality, lesbianism and bisexuality—which, until 1973, were pathologized as mental disorders by the psychiatric profession—has shifted dramatically toward acceptance of sexual diversity as a manifestation of normal human variance. Lesbians, gays and bisexuals have felt increasingly comfortable coming out of the proverbial closet, as human rights statutes have been amended to prohibit discrimination based on sexual orientation (beginning with Quebec in 1977, all other provincial jurisdictions and the Yukon subsequently following suit). Many same-sex couples, who previously went to great lengths to conceal their relationships, now live together openly. Sweeping legislative reforms have occurred at both federal and provincial levels to grant cohabiting same-sex partners access to spousal rights and responsibilities that were previously reserved exclusively for heterosexual partners, including most of the rights and responsibilities once reserved for married spouses. As a result, same-sex partners now assume spousal obligations and receive spousal benefits from employers, insurers and other service providers, as well as all levels of government. Lesbians, gays and bisexuals are parenting children at rapidly rising rates. Custody and adoption laws, which historically discriminated in favour of heterosexual parents, have been modified and amended to treat lesbian, gay and bisexual parents equally. Many churches, synagogues and other places of worship are welcoming the full integration of their lesbian, gay and bisexual congregants by, among other things, celebrating same-sex relationships in public commitment ceremonies. Recent public opinion polls demonstrate majority support for allowing same-sex couples to marry. In the context of these modern social realities, granting same-sex couples the freedom to marry represents an incremental change: the long overdue modernization of an antiquated common law rule.Supplementary Affidavit of William Eskridge, para.15; Affidavit of Margaret Nosworthy; Affidavit of Brent Hawkes, para.50; Affidavit of John Fisher, paras.78-80 and Exh.D and E
74 However, and in any event, we dispute the Respondents’ assertion that the full realization of our equality should be suspended or delayed in the interests of incremental reform. As Justice Iacobucci stated in Vriend,
Vriend v. Alberta,  1 S.C.R. 493 at 559-560; Rosenberg v. Canada (1998), 38 O.R. (3d) 577 (C.A.) at 586-587; Cross-examination of William Eskridge, pp.88-93 (Q. 205-207)
PART III—REMEDY REQUESTED
75 Based on all of the foregoing submissions, EGALE supports the remedies requested by the Applicant couples and the MCCT in these proceedings. The Federal Government’s request for a suspension of remedy should be rejected, inter alia, because it is premised on the erroneous assumption that removal of the restriction against same-sex marriage is not required in order to remedy the rights violation in this case. In other words, the Government is requesting a suspended remedy because it wants time to consider doing something other than granting same-sex partners equal access to marriage. EGALE submits that a constitutional remedy cannot be suspended in order to permit the Government to consider and implement policy options that fall short of its constitutional obligations.
SUBMITTED THIS 12th DAY OF OCTOBER, 2001,
SACK GOLDBLATT MITCHELL
Solicitors for EGALE Canada Inc.
1 Although some statutes continue to confer unique benefits and responsibilities upon married spouses, they are constitutionally suspect in light of cases like Miron v. Trudel and Taylor v. Rossu. We can reasonably expect that most, if not all, of those statutes will be reformed in the foreseeable future so as to extend equal benefits to unmarried cohabiting partners (including same-sex partners). Miron v. Trudel,  2 S.C.R. 418; Taylor v. Rossu (1998), 161 D.L.R. (4th) 266 (Alta. C.A.); Walsh v. Bona (2000), 5 R.F.L. (5th) 188 (N.S.C.A.)
2 There are two exceptions: the Evidence Act and Immigration Act grant greater rights to married spouses than to common law partners. Neither was amended by Bill C-23, but the Immigration Act is currently in the process of being amended.
3 The evidence in the record demonstrates that, when asked whether they believe that same-sex partners should have the right to marry, a majority of Canadians respond favourably, with the most recent poll revealing 65.4% support for same-sex marriage. The Federal Government relies on a poll in which a majority of respondents indicated agreement that the current definition of marriage is that of a union between one man and one woman, which simply demonstrates the respondents’ understanding of the current state of the law; the respondents were not asked whether they support changing the definition of marriage to include same-sex partners. Cross-examination of John Fisher, p.39 and Exhibit 5 thereto; Leger poll dated June 22, 2001; Affidavit of John Fisher, paras.79-80.
4 On this point, EGALE respectfully submits that Judge Pitfield erred, inter alia, when he failed even to consider the “rational connection” and “minimal impairment” criteria in his reasons for judgment in EGALE Canada Inc. v. A-G Canada,  BCSC 1365.
5 Any suggestion that the impugned common law rule regarding capacity to marry was developed based on sexual orientation, rather than on actual ability to procreate, in order to avoid intrusive inquiries about the fertility of heterosexual spouses is belied by the abundance of cases in which courts have not hesitated to examine, in intimate and incredibly invasive detail, the sexual capacities and private sexual practices of married spouses. For example, in early consummation cases, it was not uncommon for courts to require a spouse to undergo a medical examination to ascertain, inter alia, whether a man was capable of ejaculation, or whether the formation of a woman’s vagina permitted penile penetration, or could be surgically altered to allow for penetration. Even in contemporary consummation cases, intimate private details of the spouses’ sexual lives are often probed by the judiciary. See, for example, Hale v. Hale,  2 D.L.R. 1137 at 1138-1139 (Alta S.C.), aff’d  3 D.L.R. 481 (C.A.) at 482; Tice v. Tice,  O.R. 233 (H.C.) at 239, aff’d  2 D.L.R. 591 (C.A.); Szrejher v. Szrejher,  O.R. 250 (H.C.); S. v. S. (No.2),  3 All E.R. 55 (C.A.); D. v. D. (1973), 3 O.R. 82 (H.C.); Aisaican v. Kahnapace,  S.J. No. 539 (Sask. Q.B) (Q.L.)
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