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Some court decisions, documents, laws, research papers, etc. which impact the rights of persons of all
sexual orientations, including the right of same-sex couples to marry
Sponsored link.
"SSM" in this essay means "same-sex marriage"
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1990, and other years: |
Human Rights Codes These are laws in Canada's ten provinces and three territories which protect the dignity of all persons within their
jurisdictions.
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The preamble to Ontario's code affirms that "the inherent dignity and the equal and inalienable rights of all members of the human
family is the foundation of freedom, justice and peace in the world." |
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The body of Ontario's code states: "[I]t is public policy in Ontario to recognize the dignity and worth of every person and to
provide for equal rights and opportunities without discrimination that is contrary to law, and having as its aim the creation of a
climate of understanding and mutual respect for the dignity and worth of each person so that each person feels a part of the
community and able to contribute fully to the development and well-being of the community and the Province."
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This type of wording guarantees equal rights for persons of all sexual orientations (heterosexual, homosexual and bisexual).
Civil rights lawsuits have often cited
human rights codes.
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See: R.S.O. 1990, c. H.19 for
the text of Ontario's code. |
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1995:
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Sexual orientation as a protected class:
"Egan v. Canada," Supreme Court of Canada, 1995-NOV-01. This ruling examined the definition of "spouse" in
old age security legislation.
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The act stated that a: " 'spouse', in relation to any person, includes a person of the opposite sex who is living with that person, having
lived with that person for at least one year, if the two persons have publicly represented themselves as husband and wife'." In essence, the
legislation considered loving, committed living together couples to be spouses if they
are of opposite-sexes, and as mere roommates if they were of
the same-sex. |
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The court decided that the law's definition infringed upon section S 15(1) of the
Canadian Charter of Rights and Freedoms
(Canada's constitution) because it gave financial benefits to unmarried opposite-sex couples, while withholding the same benefits
from same-sex spouses. |
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The court decided that: "Just as the Charter protects religious beliefs and religious practice as aspects of religious
freedom, so too should it be recognized that sexual orientation encompasses aspects of 'status' and 'conduct' and that both should
receive protection." |
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Concerning sexual orientation, the court stated that whether or not it "...is based on biological or physiological factors, which
may be a matter of some controversy, it is a deeply personal characteristic that is either unchangeable or changeable only at
unacceptable personal costs, and so falls within the ambit of [the Charter's section]...15 protection as being analogous to the
enumerated grounds." |
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The court defined sexual orientation as a protected class and, in effect, rewrote the Charter by adding this class to others
which had been specifically mentioned in the Charter. The effect of this decision was immense.
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See the text at: http://www.canlii.org/ |
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1999:
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Definition of "spouse:"
"M. v. H.," Supreme Court of Canada, 1999-MAY-20. This case was brought by two lesbians who separated in 1992 after having lived
together since 1982.
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One sought financial support from the other, but had no legal status because the definition of "spouse" in Ontario family law only
recognized couples as spouses if they were of opposite sex.
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The court ruled that the provincial law unconstitutionally denied benefits to same-sex couples: "This denial of a benefit
violates the purpose of [the Charter's section]... 15(1). One factor which may demonstrate that legislation that treats the claimant
differently has the effect of demeaning the claimant's dignity is the existence of pre-existing disadvantage, stereotyping, prejudice,
or vulnerability experienced by the individual or group at issue. In this case, there is significant pre-existing disadvantage and
vulnerability and these circumstances are exacerbated by the impugned legislation."
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See the text of this ruling at: http://www.canlii.org/ |
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2002: |
Various legal reports about SSM:
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"Recognition of rights and obligations in same sex relationships" Alberta Law Reform Institute, 2002-JAN, at:
http://www.law.ualberta.ca/ You may need software to read these files. It can
be obtained free from:
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"Marriage and Legal Recognition of Same-sex Unions. A Discussion Paper," Department of Justice Canada, 2002-NOV, at
http://canada.justice.gc.ca/ |
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"The Legal Organization of Personal Relationships," Law Commission of Canada, 2002-JUN-25, at:
http://www.lcc.gc.ca./ |
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Lower Quebec court authorizes SSM: Hendricks et al. v. Attorney
General of Canada, et al., Superior Court of the District of Montreal,
2002-SEP-06. The judgment declared various Quebec and Federal laws invalid
because they restricted marriage to opposite-sex couples -- thus not allowing
SSM. However, the court suspended their "declarations of invalidity" for a
period of two years, presumably to allow the Quebec government to alter its
legislation. |
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2003:
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British Columbia court authorizes SSMs in the future: "Barbeau v.
British Columbia," Court of Appeal for British Columbia, 2003-MAY-01.
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Eight same-sex couples sued the Attorneys General of British Columbia and
Canada; five couples also included the Director of Vital Statistics of British
Columbia as a respondent and EGALE Canada as a co-appellant. |
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There were three interveners. One was a group of liberal rabbis. Ironically, he other
two had the phrase "for marriage" in their names, but were opposed to
marriage by same-sex couples. |
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"The Court declared that the common law definition of marriage as 'the
voluntary union for life of one man and one woman to the exclusion of all
others' constituted a common law bar to same-sex marriage and was of no force or
effect on the basis that it violated [section]...
15 of the Canadian Charter of Rights and Freedoms and could not be saved
under [section]...1. The Court reformulated the common law definition of marriage as:
'the lawful union of two persons to the exclusion of all others'." |
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See the text at:
http://www.canlii.org/ |
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It initially suspended these remedies until July 12, 2004, to allow the
province to accommodate the changes in law. |
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Ontario court authorizes SSMs: "Halpern v. Canada (Attorney general)," Court of Appeal for Ontario, 2003-JUN-10. This is the blockbuster ruling which
immediately made SSM available in Ontario. That led to similar rulings in courts across Canada. |
Seven same-sex couples initiated a lawsuit against the Ontario government
asking that they be sold marriage licenses and have their marriages registered
by the province. | |
The Court noted that:
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"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."
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"The definition of marriage in Canada, for all of the nation’s 136 years, has been based on the classic formulation of Lord Penzance in Hyde v. Hyde and Woodmansee (1866), 'I conceive that marriage, as understood in Christendom, may for this purpose be defined as
the voluntary union for life of one man and one woman, to the exclusion of all others.' The central question in this appeal
is whether the exclusion of same-sex couples from this common law definition of marriage breaches....the Canadian Charter of Rights and Freedoms
....in a manner that is not justified in a free and democratic society under
[Section]... 1 of the Charter." |
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They decided that the Charter of Rights and Freedoms
did give same-sex couples the right to marry. They ordered the Government of
Ontario to start issuing marriage licenses immediately. The first SSM was
solemnized within hours. | |
See the text of the ruling at:
http://www.canlii.org/ |
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British Columbia court authorizes SSMs immediately: "Barbeau v.
British Columbia," Court of Appeal for British Columbia, 2003-MAY-01.
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Noting that SSMs were now legal in Ontario, the appellants applied to
re-open their appeal and request a lifting of the "suspension of remedies"
which would have delayed their marriages until mid-2004. |
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The court ruled that it was: "...apparent that any further delay in
implementing the remedies will result in an unequal application of the law as
between Ontario and British Columbia, with same-sex couples being denied the
right to marry in British Columbia until July 12, 2004 while same-sex couples in
Ontario may marry as and when they choose to do so....In these circumstances,
the Court is satisfied that it is appropriate to amend the order in these
appeals to lift the suspension of remedies, with the result that the declaratory
relief and the reformulation of the common law definition of marriage as 'the
lawful union of two persons to the exclusion of all others' will take immediate
effect." |
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See the text at:
http://www.canlii.org/ |
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2004:
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Quebec court authorizes SSM: "Catholic Civil Rights League v.
Hendricks," The Quebec Court of Appeal, 2004-MAR-19.
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The Catholic Civil Rights League, who was an intervener in the Quebec
SSM case, appealed the 2002-SEP-06 decision of the Superior Court of the
District of Montreal to the Quebec Court of Appeal. Again we see an
irony: a "civil rights league" is arguing to withhold marital civil rights
from same-sex couples. |
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By the time that the higher Quebec court considered the lawsuit, the Attorney
General of Canada had decided to not to "appeal the judgments rendered in
Ontario and British Columbia." Also, he had discontinued his own appeal in
Quebec. The court decided that "the Attorney General created a new legal
context:" Laws that restricted marriage to opposite-sex couples were no
fully longer in force. The precedent has been set that SSM is constitutionally
guaranteed across
the country. |
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The court decided that the Catholic Civil Rights League had no
standing and could not appeal the case. One reason was that: "the sole
question at issue is that of civil marriage, and, on the other, an explicit
provision of law allows any member of the clergy to refuse to solemnize a
marriage when a religious impediment exists." |
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The Quebec Court of Appeal decided to "refuse to render a judgment on the
merits of the appeal." They dismissed it. |
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They further decided to eliminate the delay in implementing the lower
court's ruling. Same-sex couples were able to marry immediately in Quebec. |
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An unofficial English translation of the court ruling is at:
http://www.jugements.qc.ca/ |
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Yukon Territory authorizes SSM: Dunbar & Edge v. Yukon et al.,
Supreme Court of the Yukon Territory, 2004-JUL-14.
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The court noted that "The
Attorney General of Canada concedes that the opposite sex requirement for
marriage is unconstitutional, as not consistent with the equality rights
guarantee set out in [section]...15(1) of the Charter and is not justifiable." |
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The court denied the request by the Attorney General to delay the granting
of a marriage licenses to same-sex couples in the Yukon until after Parliament
has had a chance to change the marriage act. |
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The court concluded that: "In our view, an immediate
declaration will simply ensure that opposite-sex couples and same-sex couples
immediately receive equal treatment in law in accordance with [section]...15(1)
of the Charter." |
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The court ruled that "...the new
common-law definition of marriage in the Yukon is 'the voluntary union for life
of two persons to the exclusion of all others'." |
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The text of the decision is at:
http://www.canlii.org/ |
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2005:
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Copyright © 2004 & 2005 by Ontario Consultants on Religious
Tolerance
Originally posted: 2004-SEP-22
Latest update: 2005-NOV-20
Author: B.A. Robinson | |
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