In the first provincial Court of Appeal decision of a landmark Canadian trilogy, a three-judge panel of the B.C. Court of Appeal unanimously held that the common-law rule restricting marriage to opposite-sex couples is unconstitutional as it is discriminatory and not justifiable. The Court went on to change the common-law rule to remove the restriction and permit same-sex couples to marry. This change was suspended until July 12, 2004 to permit the federal and provincial governments to amend related laws.
One of the two petitions was brought by the BC Partners, three couples denied marriage licences in the province. They are represented by Kathleen Lahey, a law professor at Queens University. The other was begun by Egale Canada and five couples whose applications for marriage licences had also been refused. They are represented by Cynthia Petersen of Sack Goldblatt Mitchell and Joe Arvay of Arvay Finlay.
“This is a historic day for equality,” commented Robin Roberts, who, with her partner Diana Denny is one of the couples in the Egale petition. Added Jane Hamilton, one of the B.C. partners, “We are overjoyed that the Court agrees with us that our relationships are just as loving and committed as opposite-sex relationships, and just as worthy of public affirmation.”
“We are not surprised that the Court recognized the need to change the law to reflect modern social reality and values,” explained lawyer Cynthia Petersen today. “This change will not only advance equality, it will advance religious freedom as well.”
Ken Smith, speaking on behalf of the Coalition of Canadian Liberal Rabbis for Same-Sex Marriage, added: “Now religions that want to marry same-sex couples will be free to do that, and religions that don’t want to perform marriages for same-sex couples won’t have to. They will continue to be free to set their own rules for marriage, as has always been the case.”
Madame Justice Prowse wrote that: “the equality rights of same-sex couples do not displace the rights of religious groups to refuse to solemnize same-sex marriages which do not accord with their religious beliefs. Similarly, the rights of religious groups to freely practise their religion cannot oust the rights of same-sex couples seeking equality, by insisting on maintaining the barriers in the way of that equality.”
“This historic decision means that lesbian and gay couples and their children will no longer be treated as second-class members of society, but now have the right to be treated as ordinary people,” said lawyer Kathleen Lahey. “This decision sends a message of acceptance that is long overdue for these couples, their families, and lesbian and gay people across the country.”
Justice Prowse wrote that the “common law bar against same-sex marriage is of no force or effect because it violates rights and freedoms guaranteed by s. 15 of the Charter and does not constitute a reasonable and demonstrably justified limit on those rights and freedoms within the meaning of s. 1 of the Charter. I would also reformulate the common law definition of marriage to mean ‘the lawful union of two persons to the exclusion of all others.’”
Justice Prowse stated clearly that any alternative registry scheme would not be acceptable, stating:
“The obvious remedy is that chosen by Mr. Justice LaForme in Halpern—the redefinition of marriage to include same-sex couples. In my view, this is the only road to true equality for same-sex couples. Any other form of recognition of same-sex relationships, including the parallel institution of RDP’s, falls short of true equality. This Court should not be asked to grant a remedy which makes same-sex couples ‘almost equal,’ or to leave it to governments to choose amongst less-than-equal solutions.”
All involved called upon the federal government to respect the decision to provide same-sex couples with the equal right to marry. “It is an outrage that the federal government has been wasting taxpayers’ money fighting to discriminate against its own citizens,” said Peter Cook, who with his partner Murray Warren is one of the couples in the B.C. Partners case. “It’s time for the federal government to catch up to society, and respect the Court’s decision and the Constitution.”
In the fall of 2002, the Federal Minister of Justice asked the government Justice and Human Rights Committee to hold public hearings on this issue. Hearings were held in Ottawa during February and March, and across the country in April. They concluded yesterday in Iqaluit. Supportive witnesses have included the Law Commission of Canada, the Canadian Human Rights Commission, the Ontario Human Rights Commission, the Yukon Human Rights Commission, the Canadian Bar Association, the Canadian Labour Congress, the Canadian Association of Social Workers, the Vancouver Association of Chinese Canadians, the United Church, a coalition of Jewish rabbis and the Unitarian Church. The Justice Committee is expected to issue its report in early June. Transcripts are available at www.parl.gc.ca and further information is available from Egale.
While the legal rights and freedoms of vulnerable minorities should never be subject to a popularity contest, it is interesting to note that a majority of Canadians favour extending marriage to same-sex couples (Leger, 2001; Environics, 2001). As noted by government pollster Michael Marzolini, Chairman of Pollara Research, “(t)he writing is on the wall for this issue. It will become more popular. It will become more and more acceptable. Government can lead popular opinion or it can follow it and this is an opportunity to lead rather than follow it.”
The two petitions in this case were originally heard in Vancouver by the B.C. Supreme Court in July 2001. On October 3, 2001 Mr. Justice Pitfield ruled that restricting marriage to heterosexual couples is discriminatory, but that the discrimination is justifiable. The appeal of this decision was heard by the B.C. Court of Appeal in Vancouver in February.
Similar challenges are underway in Ontario and Quebec. In both of these provinces, courts ruled that the exclusion of same-sex couples from marriage is unconstitutional. The federal government appealed these decisions. The Ontario Court of Appeal hearing took place last week and the Quebec Court of Appeal hearing is expected to take place shortly.
B.C. Court of Appeal Decision Media Contact List (*Bilingual)
Elizabeth Barbeau*, 604-253-3348, ebarbeau@intergate.ca
Dawn Barbeau, dawnbarbeau@hotmail.com
Tanya Chambers, 604-215-1427, tlc_87@hotmail.com
Melinda Roy, mroy99@hotmail.com
Peter Cook, 604-714-0092, petercook@shaw.com
Murray Warren
Robin Roberts, 250-477-2751, robin-diana@shaw.com
Diana Denny
Jane Hamilton, 604-435-9585, jahamilt@direct.ca
Joy Masuhara, masuhara@direct.ca
Tess Healy, 250-962-2639, theresa_healy@telus.net
Wendy Young, wyoung@setbc.org
David Shortt, cell: 604-723-4102, dave@e-apparent.com
Shane McCloskey*, 604-608-1681, shane@marketexplorers.ca
Lloyd Thornhill, 604-687-8326, bobaloo@shaw.ca
Bob Peacock
Counsel & General contacts:
For B.C. Partners:
Kathy Lahey, 613-545-0828, kal2@qsilver.queensu.ca
For Egale:
Cynthia Petersen*, 416-979-6440, cynthiapetersen@sympatico.ca
Joe Arvay, 250-388-6868, jarvay@arvayfinlay.com
Coalition of Canadian Liberal Rabbis
for Same-Sex Marriage:
names removed by request
John Fisher, Egale*, cell: 613-291-5187, john@egale.ca
Laurie Arron, Egale, 416-532-1088, laurie@egale.ca
Gilles Marchildon, Egale*, 613-230-1043, gilles@egale.ca
Egale Canada ©2007