HOMOSEXUAL (SAME-SEX) MARRIAGES IN CANADA

Yukon territory

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Overview:

The Yukon is a territory of Canada that is located north of British Columbia. It is south and east of Alaska. Its population was 31,100 in 2003.

Over the objections of the federal attorney general, the Yukon Supreme Court issued a ruling on 2004-JUL-14 on same-sex marriage. It ordered the territorial government to issue marriage licenses immediately to same-sex couples and register their subsequent marriages. The attorney general had asked the court to defer the ruling until after the Supreme Court of Canada had made their decision on a same-sex reference that is currently before the court. Justice Peter McIntyre ruled that "a legally unacceptable result would be perpetuated in the Yukon" territory if he delayed the decision. ₁

Background:

In the past, common law in the Yukon and the federal marriage act had limited marriage in the territory to one man and one woman. Elaine Taylor, Yukon's justice minister, said on 2003-JUL-31 that she was taking a wait-and-see position towards same-sex marriage in the territory. She had no plans to allow same-sex couples to marry there until the Supreme Court of Canada and the federal Parliament settled the issue Canada-wide. Back in 2003, the federal government had been pressuring the provinces and territories to follow the lead of the Provinces of Ontario and British Columbia by allowing same-sex unions in their areas. But Taylor was concerned that Parliament may end up failing to pass enabling legislation. She said: "I think it's very important to have your ducks lined up, so to speak. The thing that I would hate to see, is that in fact, we did start issuing marriage licenses today or tomorrow, and the bill in fact did not live up to the scrutiny of the Supreme Court of Canada, or perhaps did not even go through the House of Commons. Then there would be somewhat of legal quagmire. We want to bring certainty to those individuals who want to be recognized as same-sex couples. We want to take a responsible position" ₂

A committed same-sex couple, Stephen Dunbar, 43, and Rob Edge, 46 applied for a marriage license in 2004-JAN (some sources say FEB) at the territorial Vital Statistics office. They had met two years earlier. Dunbar later said: "We could have driven across the border to British Columbia, but that wasn't good enough. My family and I contributed a lot to this community over the years and I wanted to be married here to the man I love. I'm a Yukoner. I don't want a license that's not recognized by my goverment. I knew my timing was right and that the territory was ready for it." ₇ As they expected, the office refused to issue a marriage license refused. They took their case to the Yukon Human Rights Commission. But they were impatient with the sluggishness of that process. Dunbar said: "I'd like someone to explain to me what is so difficult to understand about equal before and under the law all persons." ₃

In 2004-JUN, Dunbar and Edge sued the Yukon and federal governments in court. The Yukon territory said that it would go along with whatever decision the court made; i.e. they presumably would not appeal the court's decision to the Supreme Court of Canada if the plaintiffs won.

The Yukon government filed papers with the court that promised to issue a marriage license retroactively at some time in the future to Dunbar and Edge, if and when the federal Parliament got around to deciding the issue. This way, the couple could have their marriage bans read in church and proceed with their wedding. Dunbar said that "...it would have felt like a hollow marriage. It was hallow and it was unacceptable, and that is why we were in court today." ₄

Apparently, the federal government had changed its mind between mid-2003 and mid-2004. They were dragging their feet on the matter of same-sex marriage in the remaining provinces and territories which have not been ordered to issue marriage licenses by their courts. Jim Tucker, the couple’s lawyer, said: "The Attorney General of Canada agreed that it is unconstitutional to exclude same-sex couples from civil marriage, but argued that the hearing should be delayed until after the Supreme Court of Canada rules on the government’s Reference. Rob and Stephen have a big wedding planned for this Saturday [2004-JUL-16]. If the adjournment is granted, they will have to wait one or two years, perhaps longer, before their marriage is recognized." ₅ The Supreme Court of Canada was not scheduled to hear arguments on same-sex marriage until 2004-OCT. The court's ruling would be handed down some time after that. Only then could Parliament consider making changes to the federal marriage act. As it turns out, the Canadian Parliament did not schedule its final vote on its bill C-38 until mid 2005-JUN.

Martha McCarthy is a lawyer who represented couples in the same-sex cases before the Ontario and Quebec courts. She flew to the Yukon on behalf of Egale, the national gay and lesbian advocacy group. She said: "Same-sex couples should not have to wait patiently for their rights to be upheld. The federal government accepted not only the Ontario and B.C. court rulings that marriage licenses be issued to same-sex couples, but also the Quebec Court of Appeal's ruling that the law has changed across the country. If they accept that in Quebec, how can they now take a different position in the Yukon?"

Laurie Arron, Director of Advocacy of Egale Canada, said: "While courts have said same-sex couples must be permitted to marry, provinces and territories are still refusing to issue marriage licenses, and are being supported in that refusal by the federal government. This is a legal vacuum that makes challenges in other provinces and territories inevitable....The Prime Minister spoke eloquently during the election campaign about the importance of the Charter, and Canadians clearly agreed. Mr. Martin has a mandate to move forward and an excellent opportunity to take action to back up his eloquent words. It’s time for the Prime Minister to direct the Justice Department to support us in court rather than fight against us. That would not only demonstrate his support for the Charter, it would also save the taxpayer millions of dollars in unnecessary legal costs." ₅

Rob Edge said: "Stephen and I love each other. Our wedding will be one of the most important days of our lives, symbolic of the commitment we feel for each other and wish to demonstrate to our friends, our family, and our community. It’s an odd feeling to have to explain that to others. Most people take that for granted." ₅ They will be married in the local United Church.

Court ruling:

Before a courtroom packed with observers, Justice Peter McIntyre of the Yukon Supreme Court read his decision. He changed the territory's common law definition of marriage from a union between one man and one woman to the voluntary union for life of two persons to the exclusion of all others. He said: "The [old] common law definition of marriage is unconstitutional."

Dunbar said: "Well, it means this afternoon we can go pick up our marriage license, just like any other couple that's getting ready to get married would do." Edge said: "We're very, very happy with the outcome."

They could have traveled to British Columbia to be married, But Dunbar has said: "I am a Yukoner. I'm a long-time resident. And there is a lot of support in this community for this. I believe strongly I deserve a Yukon marriage license."

In an unusual move, Justice McIntrye ordered the territorial and federal governments to split the costs of the two lawyers, Jim Tucker and Martha McCarthy.

Laurie Arron, said: "This ruling sends a message that governments across the country must now accept the Charter right of same-sex couples to marry in a civil ceremony. There is one law for the whole country, and that law includes same-sex couples. Governments who don't accept that are leaving themselves open to legal challenges and liability for costs." ₅

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. "Yukon judge clears way for same-sex marriage; Gay couple to wed Saturday in Whitehorse," The Toronto Star, 2004-JUL-14, at: http://www.thestar.com/
2. "No wedding bells yet for Yukon's gay couples," North.CBC, 2003-JUL-31, at: http://north.cbc.ca/
3. "Same-sex couple fight for Yukon wedding," North.CBC, 2004-JUN-8, at: http://north.cbc.ca/
4. "Yukon says yes to gay marriage, no to a license," QueerDay, 2004-JUL-01, at: http://www.queerday.com/
5. "Yukon court to hear equal marriage challenge today. Egale calls on Paul Martin to take action. More challenges expected while legal vacuum exists," Canadians for Equal Marriage, 2004-JUL-13, at: http://www.equal-marriage.ca
6. "Population, provinces and territories," Statistics Canada, 2003 estimates. See: http://www.statcan.ca/
7. David Graham, "Voices of reason," The Toronto Star, 2005-JUN-12, Pages A6 to A8.

Copyright © 2004 & 2005 by Ontario Consultants on Religious Tolerance
Latest update: 2005-NOV-20
Author: B.A. Robinson