Attorney General of Canada Factum

  

Court File No.: C39172

Court File No.: C39174

ontario COURT OF appeal

BETWEEN:

HEDY HALPERN and COLEEN ROGERS,

MICHAEL LESHNER and MICHAEL STARK,

MICHELLE BRADSHAW and REBEKAH ROONEY,

ALOYSIUS PITTMAN and THOMAS ALLWORTH,

DAWN ONISHENKO and JULIE ERBLAND,

CAROLYN ROWE and CAROLYN MOFFATT,

BARBARA MCDOWALL and GAIL DONNELLY and

ALISON KEMPER and JOYCE BARNETT

 

Applicants

(Respondents in Appeal)

and

Attorney General of Canada,

the Attorney General of Ontario and

novina wong, the Clerk of the City of Toronto

 

Respondents

(Appellant)

and

egale canada inc.,

metropolitan community church of toronto,

the interfaith coalition on marriage and family and

the association for marriage and the family in ontario

 

Interveners

factum of the appellant, the attorney general of canada


- and -

BETWEEN:

METROPOLITAN COMMUNITY CHURCH OF TORONTO

 

Applicant

(Respondent in Appeal)

and

attorney general of canada and

the attorney general of ontario

 

Respondents

(Appellant)

and

HEDY HALPERN and COLEEN ROGERS,

MICHAEL LESHNER and MICHAEL STARK,

MICHELLE BRADSHAW and REBEKAH ROONEY,

ALOYSIUS PITTMAN and THOMAS ALLWORTH,

DAWN ONISHENKO and JULIE ERBLAND,

CAROLYN ROWE and CAROLYN MOFFATT,

BARBARA MCDOWALL and GAIL DONNELLY, and

ALISON KEMPER and JOYCE BARNETT

egale canada inc.,

the interfaith coalition on marriage and family and

the association for marriage and the family in ontario

 

Interveners


table of contents

PART I – Nature of the appeals and Cross-appeals.. 1

PART II – overview Statement.. 2

PART III – summary of the facts.. 3

A.    Broad Context 3

B.    Legal context 7

1)     Reception of British Marriage Law into English Canada. 7

2)     Quebec/ Lower Canada. 8

3)     Post-Confederation and the Canadian Division of Powers. 9

a)     Introduction. 9

b)     Legislation within the Scope of the Federal Government’s Jurisdiction. 10

i)      Prohibited Marriages. 10

ii)     Divorce. 11

c)     Legislation within the Scope of the Common Law Provinces’ Jurisdiction. 12

4)     Post-Confederation Legislation in Quebec. 13

a)     Quebec’s Legislation Relating to Marriage. 13

b)     Bill S-4, Federal Law - Civil Law Harmonization Act, No. 1. 13

5)     Recent Federal Development: Bill C-23, an Act to Modernize the Statutes of Canada. 13

6)     Legislation Relating to Same-Sex Unions in Other Countries. 16

C.    Setting the Evidentiary Record Straight 18

PART IV – Statement of issues and argument.. 19

A.    Standard of Review is Correctness. 20

B.    Errors in the Section 15(1) Analysis. 20

1)     Introduction. 20

2)     The Divisional Court’s approach to the s. 15(1) analysis was incorrect 21

a)     Prima facie determination, that marriage breaches s.15(1) 22

b)     The inappropriate dichotomy between a “purposive” and “contextual” analysis. 23

c)     Failure to apply an objective approach to the subjective perspective. 25

d)     Conflation of the s. 15(1) analysis with other Charter guarantees. 26

e)     Error in approach to s.15(1) “discrimination” analysis. 27

3)     Errors in conclusion on the nature and purpose of marriage. 28

4)     No evidence to support speculation that marriage was intended to discriminate against same-sex couples  30

C.    The Correct Section 15(1) Analysis – Marriage is Not Discriminatory. 30

1)     Introduction. 30

2)     Previous Supreme Court Jurisprudence on s. 15(1) of the Charter in Relation to Sexual Orientation  32

3)     Case law Concerning the Definition of Marriage. 34

4)     Contextual Approach. 34

a)     Introduction. 34

b)     Historical, Sociological and Anthropological Role of Marriage. 34

5)     The s.15 Tests. 38

a)     Distinction or Differential Treatment 38

b)     Enumerated or Analogous Grounds. 41

c)     Discrimination. 41

d)     Human Dignity. 42

e)     Disadvantaged Group. 43

f)      Correspondence with Needs, Capacities and Circumstances. 44

g)     Amelioration of Conditions of a Group. 46

h)     Nature and Scope of the Interest Affected. 47

6)     Conclusion. 47

D.    Section 1. 47

1)     Application of the s. 1 Analysis. 47

2)     The s. 1 Tests. 50

a)     Contextual Approach. 50

b)     Pressing and Substantial Objective. 51

c)     Rational Connection. 52

d)     Minimum Impairment 53

e)     Proportional to the Objective. 55

f)      Other Free and Democratic Societies. 56

g)     Deference to Parliament on Issues of Complex Social Policy. 58

h)     Conclusion. 59

PART V – ORDER SOUGHT.. 59


Factum of the Appellant, the Attorney General of Canada

PART I – Nature of the appeals and Cross-appeals

1.                                          The Attorney General of Canada (“Canada”) appeals from two orders issued by the Divisional Court of Ontario on August 30, 2002,[1] following reasons released on July 12, 2002.[2]  The first application was brought by eight same-sex couples (“the Halpern et al couples”) who each requested a marriage licence from the City of Toronto in 2000 or 2001.[3]  The second application was brought by the Metropolitan Community Church of Toronto (“MCCT”), a religious institution that conducted two same-sex union ceremonies pursuant to the publication of banns.[4]  In January of 2001, MCCT asked the Court to order the province to register the unions of each of the two couples (“MCCT couples”) as marriages.  The two applications challenged the constitutionality of the opposite-sex requirement of marriage and were joined together.[5]

2.                                          The Divisional Court panel, Smith A.C.J.S.C., Blair R.S.J. and Laforme J., unanimously ruled that the common law definition of marriage as “the voluntary union of one man and one woman to the exclusion of all others”[6] infringes the Halpern et al and MTTC couples’ s.15(1) equality right, and is not justifiable under s.1 of the Charter.  The Court ruled that the remaining Charter rights claimed are either not applicable or not infringed.

3.                                          The panel’s ruling on remedy, in contrast, was not unanimous.  Smith A.C.J.S.C. ruled that it is Parliament’s role to legislate the appropriate remedy and no time limit should be fixed for it to do so.  Laforme J. ruled that the Court should amend the definition immediately and substitute the words “any two persons” for the words “one man and one woman”.  Blair R.S.J. ruled that Parliament should be allowed two years to do so, failing which he ordered the same remedy as Laforme J.

4.                                          The Halpern et al couples have cross-appealed on the question of remedy alone.  MCCT has cross-appealed on the issue of remedy as well as the dismissal of its claim that marriage infringes its s.2(a) rights and its own s.15(1) right as a religious institution.  This factum of the Attorney General of Canada is confined to argument relating to the s.15(1) right of the couples and s.1.  Canada’s factum in response to the cross-appeals will address argument relating to remedy and all other claims of Charter infringement.

PART II – overview Statement

5.                                          Marriage is unique in its essence, that is, its opposite-sex nature.  Through this essence, marriage embodies the complementarity of the two human sexes, playing a foundational role in Canadian society.  The contextual approach to this case considers marriage as a pre-legal concept that has existed since time immemorial.  Marriage is not simply a shopping list of functional attributes but a unique opposite-sex bond that is common across different times, cultures and religions as a virtually universal norm.  In effect, marriage is not truly a common law concept, but one that predates our legal framework, through its long existence outside of it.  The Canadian common law absorbed this opposite-sex requirement of marriage to underpin the myriad of federal and provincial legislation relating to it.

6.                                          The Charter was never intended to effect a wholesale alteration of the fundamental societal structures and institutions within which it emerged.  The definitional boundaries of marriage, delineated as the lawful union between one man and one woman to the exclusion of any other person, do not engage or violate the constitutional rights of equality, security or religious freedom of those whose unions have an essential difference.  Preserving the definition of marriage as the descriptor of this opposite-sex institution is not discriminatory.  The unique opposite-sex nature of marriage does not imply that the human dignity of those in other relationships is diminished.

7.                                          However, if Charter rights are engaged simply by the unique essence of marriage, preserving this definitional uniqueness is both justifiable and in accordance with the principles of fundamental justice.  The social and legal context in which this issue is placed demonstrates that these Charter rights are currently protected, and amenable to prospective protection, without the necessity of changing the meaning and common understanding of marriage.  But, in any event, if the institution of marriage fails constitutional standards, Parliament, rather than the courts, must be tasked to choose among the variety of possible legislative options to best achieve the appropriate recognition of same-sex unions.

PART III – summary of the facts

A.      Broad Context

8.                                          The Supreme Court of Canada mandates that every Charter analysis be conducted in the total context in which the challenged provision operates.  Canada filed an extensive record to allow the Divisional Court to conduct its Charter analysis in the proper context.  This record included wide-ranging expert evidence setting out the historical (including religious) foundations of marriage, the anthropological and sociological history of this unique societal institution, and a profile of marriage as it is lived and understood in Canada today.  This record also included an extensive legislative history: the legal history of marriage in Canada’s common law and Quebec’s civil law; the array of legislation, past and present, relating to numerous aspects of marriage enacted by the two levels of government within their respective spheres; and the international and comparative law context in which this meaning operates in a virtually universal way.

9.                                          Specifically, Canada provided the expert opinion evidence of 13 legal and/or academic scholars.  Three addressed aspects of the historical and religious context of marriage.  The evidence of Prof. John Witte[7], historian, is that marriage developed and has been understood in the Western world – from its roots in Greek and Roman civilizations, through its subsequent appropriation by Christian religions – as a special kind of monogamous opposite-sex union with spiritual, social, economic and contractual dimensions -- uniting the two opposite sexes not only for the purpose of bearing children but for the raising of their children by both parents, and for companionship[8].

10.                                      Marriage is a universal norm.  Dr. Katherine Young[9], a religious comparativist, provided expert evidence across five major world religions.  Across all of them, marriage is a culturally approved opposite-sex relationship intended to encourage the birth and rearing of children, at least to the extent necessary for the preservation and well being of society.  As such, marriage exhibits the following universal features: it is supported by the highest and most attractive incentives possible; maleness and femaleness lie at its heart, just as they lie at the heart of human existence; it has a public dimension; it sets restrictions as to who may marry, with all religions disapproving of marriage within the immediate family; it encourages procreation under specific conditions; and it is based on mutual support and duties towards children[10]:

Marriage has never been defined merely as one context for producing or rearing children, both of which can occur – and often do – without marriage.  Marriage has always been defined as an “ideal” context for producing and rearing children.  That is because marriage, at least in theory, provides them with parents of both sexes on an intimate and enduring basis (although it does not always work out this way due to death, divorce or abandonment). (emphasis in original)[11]

11.                                      The expert evidence of Dr. Edward Shorter[12], a social historian, is that marriage, despite tremendous evolution over the last 500 years, remains a core societal institution with constancy only in its membership and fundamental purpose – a man and a woman united with a view to the possibility of producing and raising children.  Marriage remains the most stable unit for family formation (in contrast, 50 percent or more of common law unions in Canada end in dissolution), and the majority of Canada’s children – around 73 per cent as of 1996 – continue to live in families of married couples with women who marry having twice as many children (2.87) as those in common-law relationships (1.44).[13]

12.                                      Three of Canada’s experts provided evidence of the international and comparative legal context in which the opposite-sex requirement of marriage operates.  Prof. Stephen Cretney[14], a British family law scholar, surveyed the legal history of marriage in the United Kingdom, (being the source of Canadian common law of marriage).  His evidence, detailed at pages 7-8, infra, is that the combination of the express terms of the legislation governing marriage and its effects establish it as a legal institution only open to opposite-sex couples.

13.                                      Prof. Bea Verschraegen[15], a legal expert on European comparative and international law provided evidence in this regard.  All European countries have affirmed the opposite–sex nature of marriage, with the sole exception of the Netherlands.  Some countries have chosen to formally recognize same-sex relationships by the creation of different institutions, but that all of these institutions, including the form of marriage created by the Netherlands, have been created by the various legislatures, not by the courts.[16]

14.                                      In the United States, marriage remains a fundamental yet regulated heterosexual institution, as interpreted by courts and contained in the relevant US legislation.  Prof. Sanford Katz, an expert in American family law provided this evidence,[17] which is further detailed at page 16, infra.

15.                                      Three experts provided the Canadian context as to how marriage is lived and understood today.  In Canada, common law relationships are less stable and 60% of married couples have children compared to 40% of common-law couples, however, the incidents of marriage is losing ground to the incidents of common law relationships.  This evidence was given by Professor Evelyne Lapierre-Adamcyk[18], an expert in Canadian demographics, based on statistics on marriage and families in Canada.  The anthropological evidence of Dr. Suzanne Scorsone[19] indicates the number of Canadians that marry by religious ceremony – 76% of marriages in 1997 were conducted by a member of the clergy, with Ontario the highest at 94%.  After 30 years, while it is clear that the advent of no-fault divorce in the Western world has achieved positive ends, it has also resulted in some unfavourable outcomes.  This provides the case for exercising caution in making changes to such a fundamental institution as marriage, according to Dr. Douglas Allen[20], an expert on the economic costs of marriage and divorce.

16.                                      Three experts for Canada responded to specific evidence filed by the Halpern et al couples or the intervener EGALE[21].  Dr. Dwight Duncan[22], an expert in the classics and in religious canon, investigated all of the historical sources relied on by Professor William Eskridge and responded to him.  Contrary to Prof. Eskridge’s evidence, it is clear that same-sex unions have been a rarity, and that they have never enjoyed widespread sanction or recognition by states or by society.

17.                                      Dr. Robert Stainton[23], an expert in the philosophy of language and linguistics, refuted the statements of Professor Susan Ehrlich, presented by EGALE.  Dr. Stainton’s evidence is that marriage remains defined, and understood, as an opposite-sex institution, and that there is no basis for stating that the linguistics of marriage foment prejudice towards gays and lesbians.

18.                                      The raising of children in same-sex families was not at issue for the Attorney General of Canada, but was raised in the affidavit of Dr. Jerry Bigner on behalf of the Halpern et al couples, who postulated that the social science research conducted to date shows that children raised by same-sex couples do just as well as those raised by opposite-sex couples.  Dr. Stephen Nock[24], an expert in research methodology, examined the same studies and responded to the evidence with his expert opinion that the social science research conducted to date is highly limited and is not capable of establishing, one way or another, the point intended.

B.     Legal context

1)      Reception of British Marriage Law into English Canada

19.                                      The roots of Canadian marriage law in Canada’s common law jurisdictions are found in the common law and the statutory marriage laws of England.  The legal definition of marriage, as the union of one woman and one man, derives from the English common law and the classic statement of Lord Penzance in the 1866 British case, Hyde v. Hyde and Woodmansee[25].  Lord Penzance defined marriage as “the voluntary union for life of one man and one woman, to the exclusion of all others”.  This is the single definition consistently followed and applied by both English and Canadian courts.[26]

20.                                      The law governing the formation of marriage in England was long regarded as a matter exclusively for the Church[27].  Acts of Parliament dealing with one aspect of legal capacity to marry – the rules defining the prohibited degrees of relationship – were enacted in the reigns of Henry VIII and Elizabeth I, in consequence of the difficulties experienced in validating King Henry’s marital relationships.  Although these statutes gave legislative expression to the essentials of a valid marriage, the ultimate source of law remained the revelation of the Christian religion[28].

21.                                      By 1753, with the enactment of the Clandestine Marriages Act and the Marriages Act of 1836, the law governing the formation of marriage had become clearly a matter for the legislature.  However, in contrast to the codified civil law systems of continental Europe, the legislation did not aim to be entirely self-contained.  For this reason, it did not attempt to define marriage and, indeed, to this day English statute law does not make any attempt at definition.  It is assumed that the “marriage” which is to be created is a concept so well understood that definition would be superfluous[29].

22.                                      From the legal perspective, marriage has always been subject to limitations.  Historically and continuously, marriages have been prohibited in Canada on grounds of consanguinity or affinity, also derived from English law.[30]  Polygamous and polyandrous relationships have never received legal recognition.  Additionally, English statutes relating to the solemnization of marriage, and the central role played by the Church in performing and recording marriages, are reflected in Canadian provincial laws on solemnization.[31]

2)      Quebec/ Lower Canada

23.                                      The common law with respect to marriage does not apply in Quebec.  As indicated in the preamble to An Act respecting the Codification of the Laws of Lower Canada relative to Civil matters and Procedure[32], the laws of Lower Canada in civil matters were mainly those that, at the time of the transfer to the British Crown, were in force in that part of France governed by the Custom of Paris.  As the Civil Code of Lower Canada pre-dated the Constitution Act, 1867, it regulated the whole of marriage, including matters of capacity.[33]

24.                                      Also, Civil Code articles 124 to 127, spanning the years from 1866 to 1969, contained specific prohibitions on marriage between those related either “directly” or “collaterally”.[34]

3)      Post-Confederation and the Canadian Division of Powers

a)      Introduction

25.                                      The British North America Act of 1867 (“BNA”) created a divided jurisdiction over marriage in Canada.  The federal government was given the power over “Marriage and Divorce” in s. 91(26) of the BNA while the provinces were accorded the power over the “Solemnization of Marriage” under s. 92(12) of the Act.[35]  The BNA division of power over marriage was the subject of considerable parliamentary debate prior to the passage of the Act, especially concerning how the respective related heads of power – marriage and solemnization – would be defined in practice[36].  The Intervener, Association for Marriage and the Family raised a constitutional argument in the Court below that challenged the federal government’s ability to legislate a marital union other than an opposite-sex one.  The Divisional Court held that Parliament has the power to legislate same-sex marriage if it should choose to do so.  Canada agrees with the Court’s interpretation and decision on this issue.

b)     Legislation within the Scope of the Federal Government’s Jurisdiction

i)                    Prohibited Marriages

26.                                      The power over marriage and divorce, as conferred by the BNA Act, provided exclusive federal jurisdiction to legislate with respect to the capacity to marry.  Initially, English law on marriage established which marriages within Canada were prohibited, primarily on the grounds of consanguinity and affinity.  In this regard, English law, based on a table of prohibited degrees arising either by blood or by marriage and prepared in 1563 by Archbishop Parker of the Church of England, was incorporated into the common law of Canada at the time of Confederation[37].

27.                                      In the late nineteenth century, the federal government began to legislate on specific issues with respect to the capacity to marry.  In 1882, Parliament passed legislation repealing the initial prohibition against marriage between a man and the sister of his deceased wife[38].  In 1890, a similar statute was passed, repealing the prohibition against marriage between a man and the daughter of the sister of his deceased wife[39].  These provisions were later incorporated into the Marriage and Divorce Act and made applicable to both male and female widowers[40].

28.                                      In 1990, Parliament passed a comprehensive federal law that prohibited marriages between persons related or connected by consanguinity or affinity called the Marriage (Prohibited Degrees) Act. Also, the Marriage Act was repealed[41].  The Marriage (Prohibited Degrees) Act provides that persons may not marry if they are related lineally by consanguinity or adoption or if they are brothers or sisters by consanguinity or adoption[42].

ii)                  Divorce

29.                                      Divorce is a matter also falling within the exclusive jurisdiction of Parliament under the BNA Act.  However, initially after Confederation, the federal government did not pass comprehensive legislation with respect to divorce.

30.                                      Prior to the passage of the Divorce Act of 1967, a Canadian could seek a divorce in one of two ways.  First, if the province that s/he lived in had passed legislation conferring jurisdiction over divorce to its provincial courts, s/he could apply to his/her provincial court for a divorce[43].  Alternatively, if no provincial jurisdiction over divorce was conferred, s/he had to petition Parliament for the dissolution or annulment of the marriage[44].  A divorce was finalized by the passage of a private Act of Parliament, which had the effect of dissolving a particular marriage[45].  In 1963, the power to dissolve and annul marriages by resolution was delegated to the Senate, subject to an appeal to Parliament as a whole.

31.                                      The Divorce Act of 1967 ushered in the era of “no fault divorce”[46]. The introduction of no-fault divorce has been described as a “silent revolution”, as the import of the legislation was little debated before its enactment[47].

32.                                      The Divorce Act of 1985 is in essence the federal legislation that is applied in Canada today.  Jurisdiction to grant a divorce and ancillary relief rests with the courts of competent jurisdiction in each province.  The ground for divorce is a breakdown in marriage, which is defined as a legal separation of at least one year or a marriage where a spouse has committed adultery or has treated the other spouse with physical or mental cruelty[48].

c)      Legislation within the Scope of the Common Law Provinces’ Jurisdiction

33.                                      Under s. 92(12) of the BNA Act, the provinces have the power to legislate with respect to the solemnization of marriage.  Subject to certain minor amendments, the current legal requirements in Ontario with respect to the solemnization of marriage are found in Ontario’s Marriage Act[49] and its Regulations[50].  The statute provides that no marriage may be solemnized except under the authority of a license issued in accordance with the Act or pursuant to the publication of banns.  A couple has the option of having a civil marriage and/or a religious marriage which may then be registered with the province.

34.                                      Section 5(1) of the Ontario Act states that any person who is of the age of majority may obtain a licence, or be married under the authority of the publication of the banns, provided no lawful cause exists to hinder the solemnization.  Although marriage itself is undefined in the statute, section 24(3) of the Act states that during the marriage ceremony the persons being married are required to be declared “husband and wife”[51].  Furthermore, the marriage licence application, Form 3 under the Regulations, refers to a bride and a bridegroom[52].

35.                                      Currently, the legislation of each of the common law provinces provides that either a ‘clergy person/cleric’ or a ‘marriage commissioner/clerk of the court/judge’ appointed under the Act can solemnize a marriage, in either a religious or a civil ceremony, respectively.

4)      Post-Confederation Legislation in Quebec

a)      Quebec’s Legislation Relating to Marriage

36.              From about 1981 to 1994, Quebec had two civil codes in force: the Civil Code of Lower Canada, with many of its articles on marriage still in force, and the partial Civil Code of Quebec dealing with family law.  Both were repealed by Quebec in 1994 when it adopted its current Civil Code of Quebec[53].  Until the new legislation creating a civil union came into effect on June 24, 2002, repealing article 365(2), the Code contained the following provision:

Marriage may be contracted only between a man and a woman expressing openly their free and enlightened consent.[54]

b)     Bill S-4, Federal Law - Civil Law Harmonization Act, No. 1

37.                                      In an effort to harmonize federal legislation with Quebec civil law, Parliament adopted Bill S-4 (the Federal Law and Civil Law of the Province of Quebec Act.)  This legislation applies only in Quebec.  It includes, in s.5, an express provision that determines the opposite-sex requirements of marriage:

5. Marriage requires the free and enlightened consent of a man and a woman to be the spouse of the other.

5)      Recent Federal Development: Bill C-23, an Act to Modernize the Statutes of Canada

38.                                      In 1999, the Supreme Court of Canada rendered its decision in M. v. H.[55], holding that the definition of spouse in s.29 of Ontario’s Family Law Act discriminated against same-sex partners.  Subsequent to this decision, statutory amendments to the definition of ‘spouse’ beyond the family law statutory regime were implemented by the federal government and by most of the provinces and territories, although in different ways.

39.                                      Parliament’s initiative in response to this issue, Bill C-23, An Act to modernize the Statutes of Canada in relation to benefits and obligations, extended federal benefits and obligations to all unmarried couples who have cohabited in a conjugal relationship for at least one year, regardless of their sexual orientation.  The bill amended 68 federal statutes falling within the mandate of 23 federal departments and agencies.  Some of the federal statutes that were modernized by Bill C-23 included the Income Tax Act, Canada Pension Plan, Old Age Security Act, Bankruptcy and Insolvency Act, and Criminal Code[56].

40.                                      Bill C-23 was debated extensively in the House of Commons[57] and was the subject of comprehensive hearings before Parliament’s Standing Committee on Justice and Human Rights, and the Standing Senate Committee on Legal and Constitutional Affairs.

41.                                      Many Members of Parliament, Senators and witnesses before the Committees were concerned that the legislation would erode the distinctiveness of marriage or alter its definition by equating common-law same-sex relationships and common-law opposite-sex relationships with opposite-sex marriages.  The position of the federal government, expressed by the Hon. Anne McLellan, then Minister of Justice and the Attorney General of Canada, was that the definition of marriage would remain unchanged:

Bill C-23 will modernize federal legislation to extend benefits and obligations to common-law same-sex couples in the same way as to common law opposite-sex couples.  What is equally important is that Bill C-23 does so while preserving the existing legal definition and societal consensus that marriage is the union of one man and one woman, to the exclusion of all others, as defined by the courts.

Let me briefly elaborate on this point. The definition of marriage, which has been consistently applied by the courts and governments in Canada and was reaffirmed last year through a resolution of this House, dates back to 1866.  Let me be clear: this definition will not change.  This bill is not about marriage.  In fact, the approach chosen in this bill deliberately maintains the clear legal distinction between marriage and unmarried common-law relationships.[58]

42.                                      The Second Report of the Standing Committee on Justice and Human Rights indicated that the Committee had agreed, on March 23, 2000, to amend Bill C-23 to clearly indicate that the legal meaning of marriage would not be changed by the legislation[59].  Clause 1.1 was passed by both the House of Commons and by the Senate, which states:

Interpretation
For greater certainty, the amendments made by this Act do not affect the meaning of the word “marriage”, that is, the lawful union of one man and one woman to the exclusion of all others.[60]

43.                                      When Minister McLellan appeared before the Senate Committee on Legal and Constitutional Affairs, she acknowledged the need for clause 1.1 in order to affirm and to reassure Canadians that the meaning of marriage was not changed by the legislation:

First, since the day Bill C-23 was introduced in the House of Commons I have repeatedly said that this bill is about fairness and tolerance.  It is not about marriage and will not, in any way, alter or affect the legal meaning of marriage.  However, it did become clear during consideration of the bill in the House of Commons that it was necessary for the government to reassure some Canadians by stating this fact in the bill itself. Clause 1.1 was added to clearly indicate that the legal meaning of marriage as the lawful union of one man and one woman to the exclusion of all others would not be changed by this bill.[61]

44.                                      Parliament’s concerns existed prior to Bill C-23 when in June of 1999, the House of Commons passed a Motion that was supported by the government, which stated the following:

That, in the opinion of this House, it is necessary, in light of public debate around recent court decisions, to state that marriage is and should remain the union of one man and one women to the exclusion of all others, and that Parliament will take all necessary steps to preserve this definition of marriage in Canada.[62]

6)      Legislation Relating to Same-Sex Unions in Other Countries

45.                                      Canada’s governments have gone further than those in the majority of the world’s nations in recognizing same-sex relationships.  In the United Kingdom, Parliament has not approached this topic.[63]  Both legislation and jurisprudence have confirmed that marriage is a union between a man and a woman and that marriage between two persons of the same gender would be considered void.[64]

46.                                      In the United States, no matter what legislative amendments have been made by legislatures throughout the years, the one constant has been the legal definition of marriage as between one man and one woman.  The federal government and 33 state legislatures have passed “Defense of Marriage” Acts to define and protect the opposite-sex definition of marriage.[65]  Only two states, Hawaii and Vermont, have passed legislation providing same-sex partners with benefits and obligations through registered partnerships or civil unions.[66]  The federal Defense of Marriage Act (“DOMA”), defines “marriage” for US federal purposes as the “legal union between one man and one woman as husband and wife” and stipulates that one state need not give the usual full faith and credit to (i.e. recognize) a law of another state that allows same-sex marriage.[67]

47.                                      In all the countries of Europe, with the exception of the Netherlands, marriage means the union between one man and one woman.[68]  More and more benefits and obligations associated with marriage have been extended to relationships that have similarities to marriages over the past couple of decades, but the majority of European countries have not gone as far as Canada with respect to extending benefits to those in same-sex relationships.[69]  Where there have been discussions on recognizing same-sex relationships, the extension of marriage to include same-sex couples has been rejected in favour of creating alternative forms of legal recognition.[70]

48.                                      The European solutions vary from models limited to the regulation of financial and property aspects of the relationships, to models with certain effects linked to the personal commitment of the parties, to the registered partnership model.  However, many countries of Europe do not have any statutory scheme regulating either partnerships or cohabitation.[71]  Even in countries considered more “socially progressive”, marriage has not been altered and remains an opposite-sex institution.[72] Indeed, in Norway, a report published in 1993 by the Ministry of Children and Family Affairs emphasized the importance of marriage as follows:

[M]arriage is the most fundamental social unit and the national framework for bringing up children.  Marriage has a unique status, and no provision is proposed for marriage between homosexuals. The Bill employs the expressions “registration” and “partnership”. The terms “wedlock” and “marriage” are reserved for heterosexual marriage, with its ideological and religious status.[73]

C.     Setting the Evidentiary Record Straight

49.                                      The Divisional Court made two incorrect inferences about the evidence tendered.  The first is that all counsel agreed not to conduct cross-examinations on almost all of the experts.  The second is that much of the evidence “– from all the parties – amounts to advocacy tendered in the guise of expert testimony”.[74]

50.                                      Cross-examinations on all experts were scheduled to take place from mid-May to late June, 2001[75].  Three things intervened.  The Halpern et al couples moved to strike a number of Canada’s affidavits in early May, Canada prepared to do the same, and the case management judge, Madam Justice Lang, adopted the view that only a few, if any, cross-examinations should be conducted to avoid a process that would be “disproportionately lengthy and expensive when balanced against the minimal assistance they would provide for the hearing of the issues.”[76]  It was against this background that an agreement to minimize cross-examinations was reached, with Canada continuing to stand by “the utility of cross-examinations”[77].

51.                                      The Court’s inference that Canada’s expert evidence is “advocacy tendered in the guise of expert testimony” is incorrect.  In contrast to the works listed in the curriculum vitae of a number of the Halpern et al couples’, MCCT’s and EGALE’s experts, none of Canada’s experts has engaged in advocacy on the issue of same-sex marriage.  Further, each grounded their evidence within the four corners of their individual expertise and scholarship.

PART IV – Statement of issues and argument

52.                                      The Divisional Court erred in law in the following ways:

(a)               it mischaracterized, misapprehended or failed to properly consider the evidence presented by the Attorney General of Canada in applying the s.15(1) and s.1 tests;

(b)               it failed to apply the s.15(1) test correctly, which led to its finding that the opposite-sex nature of marriage infringes the Charter’s equality guarantee;

(c)               it concluded that a full s.1 analysis was not mandatory either in the context of a challenge to the common law definition of marriage, or in the context of statutory provisions that reflect legislative intent; and

(d)               it failed to apply the s.1 test correctly, which led to its determination that the opposite-sex nature of marriage to remain is not demonstrably justifiable in a free and democratic society.

A.      Standard of Review is Correctness

53.                                      It is submitted that all of the errors committed by the Divisional Court are subject to the same standard of review – correctness.[78]  The Court erred in law in its application of the sections 15(1) and 1 tests, and in applying the evidence before it.  The latter errors are questions of mixed fact and law so inextricably linked to the s.15(1) and s.1 errors of law that they, too, are subject to the same, less deferential standard of review - correctness.

54.                                      This is supported by the Supreme Court’s Charter jurisprudence holding that an appellate court can be less deferential in reassessing s.1 evidence:

As a general matter, appellate courts are not as constrained by the trial judge’s findings in the context of the s.1 analysis as they are in the course of non-constitutional litigation, since the impact of the infringement on constitutional rights must often be assessed by reference to a broad review of social, economic and political factors in addition to scientific facts.[79]

55.                                      The Attorney General of Canada submits that the same standard logically applies to an appellate court’s reassessment of similar evidence in the first step of a Charter analysis – whether claimants have met their burden of establishing the infringement of a right.

B.     Errors in the Section 15(1) Analysis

1)      Introduction

56.                                      The Ontario Divisional Court unanimously held that the common law definition of marriage was discriminatory, breaching the Halpern et al couples equality right.  The reasons for judgment of LaForme, J. contain the full s.15(1) analysis[80] which was explicitly adopted by Smith, A.C.J.S.C.[81] and Blair, R.S.J.[82]  The Court erred in law in finding that marriage breaches the couples’ right to equality: it adopted an incorrect approach to the s. 15(1) analysis, made factual determinations which were not supported by the evidentiary record and, as a result, incorrectly applied elements of the s. 15(1) test set down by the Supreme Court in the Law decision.

2)      The Divisional Court’s approach to the s. 15(1) analysis was incorrect

57.                                      LaForme, J. made the following determinations in the approach he adopted to the analysis of whether the common-law definition of marriage was discriminatory:

·                     “…my preliminary and cursory view is that the very language of s. 15(1) of the Charter appears on its face to make the current common law rule of marriage incompatible with it. By that I mean – based strictly upon sex or gender – if marriage only includes opposite-sex couples, it therefore excludes same-sex couples. That alone would appear to be prima facie incompatible with Charter values and amount to a denial of “equal benefit of the law”. However, s. 15(1) has had considerable judicial scrutiny, and the answer to that issue of equality in this case may or may not be that simple”.[83]  (emphasis added)

 

·                     “…the AGC submits that the proper approach to the analysis is contextual.[84]… Unlike the AGC the Halpern et al couples and supporting interveners submit the proper approach to a s.15(1) analysis is the “purposive approach”… The purposive approach is the most appropriate method of analysis for this most difficult issue and it is the one that I believe allows me to arrive at the correct answer”;[85]  (emphasis added)

 

·                     “In my opinion, the passion and sincerity of all those who argued before this court is testament to the deeply held views of marriage…marriage is much more than a word and I would agree with the observation that marriage – to most of Canadian society is… ‘the institution that accords to a union the profound social stamp of approval and acceptance of the relationship as being of the highest value’[86]; (emphasis added)

 

·                     “[There is] a fundamental right to marry recognized in Canadian, United States and international jurisprudence….”[87]  ”[T]he right to have that relationship recognized by society is of fundamental importance in our society.”[88]

58.                                      The four passages referred to above demonstrate critical considerations and assumptions that resulted in a number of errors in law in the approach adopted.  Each of the errors is described fully below.

a)      Prima facie determination, that marriage breaches s.15(1)

59.                                      LaForme J. started his analysis with a prima facie determination that marriage violates s.15, on the assumption that marriage makes a distinction based on an enumerated ground.  This preliminary finding ignored existing law and was made without any consideration of the context.  In making this prima facie determination of breach LaForme, J. effectively, and incorrectly, reversed the onus of proof with respect to the Court’s s.15(1) analysis.

60.                                      A Charter breach is established by the claimant’s demonstration that the s.15(1) tests are met, with a full appreciation of the context surrounding the claim and the claimants.  There is no room in this analysis for prima facie findings regarding a breach of s. 15(1), by virtue simply of the fact that it appears to draw a distinction on an enumerated ground.  The decision in the Law case makes the point on its own facts.

61.                                      In Law, the Supreme Court of Canada noted that all laws or limitations draw distinctions, and many do so on enumerated or analogous grounds to those specified in s. 15(1).[89]  The fact that a provision, limit or rule appears to draw a distinction does not justify, or support a prima facie finding of breach.  The first step of the analysis in Law requires a court to consider whether the distinction has the purpose or effect of differential treatment and relates to a “personal characteristic”.  Even this determination does not result in a prima facie finding that the limitation is in breach of Charter values – quite the contrary - it is merely the beginning of the analysis. 

b)     The inappropriate dichotomy between a “purposive” and “contextual” analysis

62.                                      LaForme J. misconstrued the law and created an erroneous and inappropriate dichotomy between the “purposive” and the “contextual” approaches to the analysis of the s.15 claim.  He contrasted the “contextual”,[90] approach to the s.15(1) analysis with the “purposive” approach and erred in treating the approaches as competing.  This led the Court to wrongly reject the “contextual” approach in favour of the “purposive” one.  As a result the Court failed to properly understand and apply both approaches, as required by the Supreme Court of Canada, to determine whether marriage discriminates against same-sex couples.

63.                                      In Lovelace, Iacobucci J. described the correct approach to the s.15 Charter analysis as being both purposive and contextual in nature:

Rather, s. 15(1) is to be interpreted in a purposive and contextual manner in order to permit the realization of the provision's strong remedial purpose, and to avoid the pitfalls of a formalistic or mechanical approach.[91]

64.                                      In the Law case, the Supreme Court reiterated the importance of context when it issued guidelines to assist lower courts and identified the relevant contextual factors to evaluate a discrimination claim in light of the purpose of s.15.

Equality analysis under the Charter must be purposive and contextual. The guidelines which I review below are just that -- points of reference which are designed to assist a court in identifying the relevant contextual factors in a particular discrimination claim, and in evaluating the effect of those factors in light of the purpose of s. 15(1).[92]

65.                                      A contextual approach must be adopted, not only in establishing the relevant comparator groups in the s.15(1) analysis, but also in determining whether the rule or law in question is “discriminatory”.[93]  The list of factors relevant for consideration in the discrimination analysis is not exhaustive and the contextual considerations will vary with the nature of the alleged discrimination.[94]  With respect to this case, the meaning of marriage must be assessed in a context that includes the historical, sociological or religious, biological and anthropological roots of the institution, which define its essence.  This approach is sanctioned by the Supreme Court in Law:

The biological, historical and sociological similarities or dissimilarities may be relevant in establishing the relevant comparator in particular, and whether the legislation effects discrimination in a substantive sense more generally: see Weatherall, supra, at pp. 877-78.[95]

66.                                      In the recent decision of Nova Scotia (Attorney General) v. Walsh, the Supreme Court emphasized that a simple “functional” comparison of the situation of the comparator groups does not exhaust the comparative analysis[96]: a proper assessment of the social context, and the adoption of a subjective and contextual assessment is essential to a proper s. 15(1) analysis.  In Walsh, this objective and contextual analysis was used to reject a discrimination claim by cohabiting common-law couples who are excluded from the automatic division of property legislation applicable to married couples.

67.                                      The Divisional Court adopted a functional comparison and failed to apply the proper contextual approach to the factors placed before it, resulting in a significant legal error manifested throughout the Court’s analysis.  In particular, the error is reflected in the Court’s failure to appreciate and apply the biological, social and historical evidence of the purpose and nature of marriage[97].  This error is also evident in the Court’s prima facie determination of a s.15(1) breach.  Further, the error prevented the Court from contextualizing the distinction claimed[98] and scrutinizing the subjective sentiments of the couples through the correct contextualized objective assessment.[99]

c)      Failure to apply an objective approach to the subjective perspective

68.                                      In failing to adopt a proper contextual approach, LaForme, J. fell into a further and significant legal error.  Despite his initial acknowledgement[100] that the approach to be adopted was both “subjective and objective”, the analysis, and in particular, the characterization of the nature of the claim was informed almost exclusively by the subjective view and feelings of the claimants.

69.                                      While a proper contextual analysis begins from the perspective of the claimants, the analysis requires a consideration of the larger context of the legislation or law (or in this case limitation), and an objective assessment of the circumstances in this context, including a consideration of the individual or group’s traits in relation to the limitation.  The objective component of this assessment must be carried out from the perspective of a “reasonable person in circumstances similar to those of the claimant”.[101]

70.                                      In Lavoie, the Supreme Court restated the objective aspect of the s.15(1) analysis.  Not only does the analysis require a “contextualized look” at how the claimant “legitimately” feels when confronted by the particular law, but also a determination that a “rational foundation” exists for the subjective belief. [102]

71.                                      LaForme, J. began his analysis with a review of the subjective perspective of the claimants, and in particular, their feelings and sentiments about being excluded from marriage.  He stated that it is the “context as viewed by the applicants” from which he conducted his examination.  That subjective perspective and the sentiments and feelings of exclusion are not scrutinized from a contextualized objective perspective at any point in the judgment.

72.                                      A correct objective review required, among other things, proper consideration of the overwhelming evidence presented as to the purpose and nature of marriage on a biological, historical and social basis.  Instead, the Court its drew conclusions – which were unsupported and directly contrary to that evidence -- about the importance, nature, and purpose of marriage simply from the manifestation of subjective strongly held feelings by the parties to the application:

In my opinion, the passion and sincerity of all those who argued before this court is testament to the deeply held views of marriage. The applicants fervently plead to be included in that institution:  the respondents intensely plead to protects its exclusivity.  I am entirely convinced that marriage is much more than a word and I would agree with the observation that marriage – to most of Canadian society is:  ‘…the institution that accords to a union the profound social stamp of approval and acceptance of the relationship as being of the highest value…”[103] (emphasis added)

73.                                      That the parties may (or may not) have strong feelings about the institution of marriage does not, under any proper analysis, constitute proof of the purpose and nature of the institution itself, which is the issue in the challenge.  While the current sentiments of the couples are properly part of the s. 15(1) analysis, those strong feelings should have been objectively assessed, to determine whether they have a rational foundation in light of the historical and sociological expert evidence provided for the context of the claim.

d)     Conflation of the s. 15(1) analysis with other Charter guarantees

74.                                      MCCT argued that Canada was obliged to recognize same-sex relationships as marriage, based upon a “freedom to marry” in Canadian law.  This argument was premised upon the “common law” (namely, U.S. case law referred to by Canadian courts), international law and sections 2(a), 2(d) and 7 of the Charter.  The AGC denied, and continues to deny that such a (constitutional) freedom is recognized in Canadian law, either under the common law or as a consequence of international law.[104] Without any consideration of the legal basis for the alleged freedom, LaForme J. adopted it as an important element of his s.15(1) discrimination analysis.[105]

75.                                      Even if a “freedom to marry” could be said to exist, clearly it does not constitute part of the equality rights analysis (grounded as it is in the common-law, and sections 2(a), 2(d) and 7 of the Charter.)  In Haig[106], and more recently in Dunmore[107], the Supreme Court emphasized the importance of not unduly blurring the distinctions between different Charter guarantees.  In simply assuming and asserting the existence of a “freedom to marry”, and relying upon it to conduct the analysis on discrimination, the Court ran afoul of this warning by distorting and conflating the s. 15(1) analysis.  In so doing, it erred in law.

e)      Error in approach to s.15(1) “discrimination” analysis

76.                                      The Court misapprehended the s. 15(1) tests to establish “distinctions” and misunderstood the legitimate argument of Canada in this regard.  LaForme, J. rejected what he understood to be Canada's submission, characterizing it as “marriage is ‘merely a word’”.[108]  Canada's submission on this point was made in respect of one part of the s.15 analysis – whether “marriage”, by itself, creates or is the source of any differential treatment, or whether the source of any differential treatment lies elsewhere, i.e. in the benefits and obligations attached to marriage by other provisions.  LaForme, J. rejected this point in the context of the broader discrimination analysis, reaching an erroneous conclusion.  In the process, he also adopted the “deeply held” feelings of the parties related to the hearing itself, as a demonstration of the nature and importance of marriage.

3)      Errors in conclusion on the nature and purpose of marriage

77.                                      The determination of the purpose of marriage is key to both the s.15(1) and s.1 analyses.  LaForme, J. made the following critical determinations of fact, or mixed fact and law, regarding the nature and purpose of marriage:

[M]arriage throughout history has been interpreted and applied as meaning opposite-sex couples.  Moreover, it is beyond dispute that there were also throughout history exceptions to this fact, that those exceptions included unions between members of the same sex.  That, in point of fact, is what I find to be the sum total of the source and purpose, or the origins of marriage, that can be said to be a constant”;[109]  (emphasis added)

78.                                      In addition to the “sum total” determination referred to above, LaForme, J. makes the following determinations as to the nature, source and purpose of marriage:

(e)               it is the “ ‘…institution that accords to a union the profound social stamp of approval and acceptance of the relationship as being of the highest value’ ”[110];

(f)                 the exclusion of gays and lesbians from the common law definition of marriage “…declares an entire class of persons unworthy of the recognition and support of state sanction for their marriages”;[111]

79.                                      In making these determinations the Court erred in mixed fact and law.  The Court made this error by ignoring the extensive historical, sociological and anthropological evidence establishing the nature and purpose of marriage.  Contrary to the Court’s conclusions, what the evidence in the Record reveals is that a “social stamp” of approval for an adult relationship does not, and never has, defined the purpose and role of marriage.  While state recognition of a committed adult relationship may be a collateral or secondary effect of marriage, related to the need of various state and religious authorities throughout history to regulate it, this is not its purpose, and does not define its essence[112].

80.                                      In effect, the Court erred in accepting the premise, based only on argument and subjective sentiment, that the purpose of marriage is to achieve public and state recognition of a committed and intimate adult relationship (i.e. society’s “stamp of approval” of a relationship) and by failed to apply the objective evidence in the Record.

81.                                      The Court also mischaracterized the nature of marriage, leading to an erroneous analysis.  This is demonstrated by Mr. Justice Blair’s reduction of all of the evidence to two different ways of viewing marriage: as an institution in which heterosexual procreation, simpliciter, is essential to its nature (in which case, homosexual couples cannot participate based on capacity) or as an institution which admits of a broader rationale (in which case same-sex couples cannot be excluded based on personal characteristics[113]).  Blair J. found that child-rearing, companionship and the related attributes of a conjugal relationship are marriage’s “defining characteristic”[114], and in doing so, endorsed “all of the reasons articulated by Justice Laforme”[115] with regard to the rest of the s.15(1) analysis.  He based his considerations of marriage on “functional” similarities between couples in same-sex and opposite-sex relationships.[116]  The Supreme Court has recently disapproved of this approach to the discrimination analysis.[117]

82.                                      To reduce the rich and complex social, historical and anthropological evidence filed by Canada on the nature and purpose of marriage to this stark proposition (i.e. marriage is for heterosexual procreation only) is to misconstrue and mischaracterize this evidence, the experts who tendered it, and the institution itself.  It is also the reason why Blair, R.S.J. was led to adopt the s.15(1) analysis of LaForme J., which did not rely on a contextual assessment of the purpose of marriage.

83.                                      As noted in more detail later in this factum[118], the evidence of the role and purpose of marriage demonstrates, instead, that marriage has always been, and continues to be, understood and defined as a very particular kind of human relationship -- a publicly committed monogamous heterosexual union.  It is also not based simply on heterosexual procreation, but on the rearing of children and the bringing together of the two opposite sexes through a universally recognized and accepted institution. 

4)      No evidence to support speculation that marriage was intended to discriminate against same-sex couples

84.                                      While acknowledging that it “does not matter” and that it “may well be a debatable point”, LaForme, J. speculates that “it was the law’s intention to discriminate specifically against gays and lesbians…at various times…”.[119]

85.                                      This finding, however, is extremely significant to the s. 15(1) analysis, and the s. 1 defence. In effect, the finding of an intention to discriminate all but guarantees a positive finding of discrimination. Further it renders the marshalling of s. 1 defence almost impossible, since the institution could not pass the first part of the s.1 test. In order to make such a damning and significant finding, evidence is required.

86.                                      LaForme, J. neither refers to, nor mentions any evidence supporting his suspicion. Furthermore, there is absolutely no support for it anywhere in the record. This finding constitutes an error in law.

C.     The Correct Section 15(1) Analysis – Marriage is Not Discriminatory

1)      Introduction

 

The interpretation should be […] a generous rather than a legalistic one, aimed at fulfilling the purpose of the guarantee and securing for individuals the full benefit of the Charter's protection.  At the same time it is important not to overshoot the actual purpose of the right or freedom in question, but to recall that the Charter was not enacted in a vacuum, and must therefore […] be placed in its proper linguistic, philosophic and historical contexts.[120]

87.                                      As a result of the serious errors in law, or mixed fact and law, this Court must now apply the appropriate tests to determine the issue.  Applying the correct approach to the section 15(1) analysis results in a finding that marriage does not violate the right to equality because it does not discriminate against same-sex couples.  Section 15 of the Charter provides:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.[121]

88.                                      Most recently, in Gosselin v. Quebec, the Supreme Court of Canada stated:

The focus is not on whether or not the claimant is subject to a formal distinction, but on whether the claimant has in substance been treated as less worthy than others, whether or not a formal distinction exists …[122][emphasis in original]

89.                                      Accordingly, the court needs to make the following three broad inquiries in determining a discrimination claim under s. 15(1):

(g)               Does the impugned law

(i)                  draw a formal distinction between the claimant and others on the basis of one or more personal characteristics, or

(ii)                fail to take into account the claimant's already disadvantaged position within Canadian society resulting in substantively differential treatment between the claimant and others on the basis of one or more personal characteristics?

(h)               Is the claimant subject to differential treatment based on one or more enumerated and analogous grounds?; and

(i)                  Does the differential treatment discriminate, by imposing a burden upon or withholding a benefit from the claimant in a manner which reflects the stereotypical application of presumed group or personal characteristics, or which otherwise has the effect of perpetuating or promoting the view that the individual is less capable or worthy of recognition or value as a human being or as a member of Canadian society, equally deserving of concern, respect, and consideration?[123]

2)      Previous Supreme Court Jurisprudence on s. 15(1) of the Charter in Relation to Sexual Orientation

90.                                      Whether the essence of marriage – its opposite-sex nature – is discriminatory is an issue the Supreme Court of Canada has never confronted.  In Egan v. Canada, the Supreme Court addressed a claim of discrimination by same-sex partners who argued that the restriction of benefits available under the Old Age Security Act to “spouses”, defined as including unmarried persons of the opposite sex living in a conjugal relationship, was discriminatory.  The challengers in Egan argued that the distribution of benefits was discriminatory because it included married couples and opposite-sex common law partners, but excluded same-sex partners whose relationships were said to be comparable to the others.  The decision was split, but even those justices who would have extended same-sex benefits wrote:

...This case cannot be taken as constituting a challenge to either the traditional common law or statutory concept of marriage.  … Thus any contention that this appeal will affect the societal concept of marriage can be set aside.[124]

91.                                      The same is true of M. v. H., where Cory J wrote: “The question to be resolved is whether the extension of the right to seek support to members of unmarried opposite-sex couples infringes s. 15(1) of the Charter by failing to provide the same rights to members of same-sex couples.”[125]

92.                                      Both Egan and M v. H concerned the extension of benefits to common law same-sex couples and the extent to which same-sex couples shared certain needs with their opposite-sex counterparts.  The societal concept of marriage does not, in itself, determine the distribution of benefits, as the Justices who were prepared to extend benefits made clear in both cases.  In these court decisions, it was proposed that the dignity interest of same-sex couples could be fully met by extending benefits already available to common-law opposite-sex couples based on similar need.  This was accomplished without altering the existing meaning of marriage.  It is the pre-existing societal concept, captured in the common law definition of marriage, which is subject to the s.15(1) analysis in this case.

93.                                      The reality of the distinct nature of marriage as an opposite-sex institution was explicitly recognized by LaForest J. in Egan:

[Marriage] is firmly anchored in the biological and social realities that heterosexual couples have the unique ability to procreate, that most children are the product of these relationships, and that they are generally cared for and nurtured by those who live in that relationship. In this sense, marriage is by nature heterosexual. It would be possible to legally define marriage to include homosexual couples, but this would not change the biological and social realities that underlie the traditional marriage.[126]

…None of the couples excluded from benefits under the Act are capable of meeting the fundamental social objectives thereby sought to be promoted by Parliament.  These couples undoubtedly provide mutual support for one another, and that, no doubt, is of some benefit to society. They may, it is true, occasionally adopt or bring up children, but this is exceptional and in no way affects the general picture[127]

La Forest J. was thus clearly of the view that exceptions to the basic biological and social reality inherent in the opposite-sex nature of marriage did not undermine the general rule.

3)      Case law Concerning the Definition of Marriage

94.                                      Apart from the decision under appeal in this case, three cases have examined the constitutionality of marriage.  The Ontario Divisional Court upheld the opposite-sex common law definition of marriage in Layland v. Ontario (Minister of Consumer & Commercial Relations).[128] In one of the two companion cases to the one presently before this Court, EGALE v. Canada (Attorney General), the Supreme Court of British Columbia held that the definition of marriage does not breach the constitutional rights of same-sex couples.[129] In the other, Hendricks v. Québec (Attorney General), the Quebec Superior Court held that the opposite-sex requirement of marriage constitutes discrimination and agreed with the reasoning of the Ontario Divisional Court.[130]

4)      Contextual Approach

a)      Introduction

95.                                      As already noted, the Supreme Court held in Law, that “a purposive and contextual approach to discrimination analysis is to be preferred.”  The contextual approach requires a careful assessment of the claim and the claimant and, in particular, the government action, the legislation, or, in the case of marriage, the common law alleged to be the source of the discrimination.[131]

b)     Historical, Sociological and Anthropological Role of Marriage

96.                                      The key to the contextual s.15 analysis in this case is the understanding that marriage pre-dates both legislation and the common law.[132]  Courts have discerned, from time to time, what the legal meaning of marriage is – usually for a limited purpose as in Hyde v. Hyde.[133]  Specific statutes may attach consequences to its membership, but that process is independent from determining the meaning of marriage itself.  Marriage is an historical and worldwide institution that possesses an inherent meaning and enjoys both universal and nearly universal features.  It is not, and has never been, simply a creature of the civil or common law.

97.                                      In keeping with the purposive and contextual approach to the s. 15(1) analysis, the Supreme Court has recognized biological, historical and sociological realities (and differences) as appropriate contextual factors to employ in assessing whether gender related provisions (or limitations) are discriminatory.[134]  The context in which the meaning of marriage should be assessed must include the historical, biological, sociological, religious and anthropological roots of the institution which define its essence.

98.                                      The essence of marriage has a meaning and life, independent of the law, which makes it unique as a subject of Charter scrutiny.  It is this unique essence – a committed heterosexual union with all of the natural consequences of these features – that is captured, but not invented, by the common law, that is in issue.[135]

99.                                      The primary premise of the Halpern et al couples’ argument in the court below was that the purpose of marriage is to achieve public and state recognition of a committed and intimate adult relationship, with the distribution of benefits and obligations in recognition of that relationship.  This was accepted by the Court below, although not supported by the evidence on the record.  The evidence and legal context reveals that this does not define, and never has fully defined, the purpose and role of marriage, generally.  State recognition of a committed intimate adult relationship is only a collateral or secondary effect of marriage in relation to opposite-sex couples.[136]

100.                                  The evidence related to the role and purpose of marriage demonstrates, instead, that marriage has always been understood in Western culture as describing a very particular kind of human relationship - a publicly committed monogamous opposite-sex union.  This understanding is ancient (it pre-dates the common law and even Christianity), nearly universal (across religions and cultures) and it remains current.  It is demonstrated by the following.

101.                                  The classical Greeks and Romans understood and wrote about marriage as the natural union of a man and woman for life, for the purposes sheltering and rearing the children of the relationship and the pooling of labour and companionship.[137]

102.                                  The classical formulations of marriage as a monogamous opposite-sex union actually took place in the context of a larger literature that accepted, and even celebrated, other kinds of sexual norms and practices, including same-sex relationships. The particular understanding of “the goods and goals” of marriage itself, however, was overwhelmingly related to an opposite-sex union, distinguishing it from other kinds of relations, albeit ones that were tolerated and accepted.  It was this particular understanding of the role and purpose of marriage that would later become a touchstone for the Western Christian understanding of, and formulations about, that institution.[138]

103.                                  The law governing the formation of marriage itself, as distinct from the law governing the legal consequences of marriage, came to be regarded within Western culture (including in the United Kingdom and its colonies) as a matter exclusively for the Church.  The Church, both within the Catholic and Protestant traditions, understood marriage as a monogamous, heterosexual union with social, economic and contractual dimensions.  Marriage was understood by the Church in the British Isles (and its colonies) in the past millennium as a relationship between a man and a woman only.[139]

104.                                  In the 19th century, when courts in the United States began to define the basic law of marriage, the institution was determined to be a consensual, permanent, monogamous union between a fit man and a fit woman of the age of consent, designed for mutual love, support, comfort, the begetting and rearing of children, and the protection of those children.

105.                                  In the United Kingdom, notwithstanding the fact that since the 19th century the State has assumed responsibility for controlling access to marriage by legislation, legislation was based on the assumption that the “marriage” in question was the institution defined by the Christian Church and its canon law, namely a permanent monogamous heterosexual union.  In Canada, the debate over the division of powers in the British North America Act makes clear it was the intention of legislators that the rules and prescriptions that were set out by the Church to which the marrying parties belonged would govern the nature of the relationship.[140]  Hence, its heterosexual nature was assumed.

106.                                  A cross-study of the major world religions (Judaism, Confucianism, Hinduism, Christianity and Islam) and the worldviews of small-scale societies reveals a universal pattern of marriage that has existed historically and across cultures.  This universal pattern demonstrates that the raison d’être of marriage has been to complement nature with culture for the sake of the intergenerational cycle.  Across world religions and throughout small-scale societies, the universal norm of marriage has been a culturally approved opposite-sex relationship intended to encourage the birth and rearing of children.  While there may be a few examples of “same-sex marriages” from some societies, there has never been a same-sex marriage norm.  From a cross-cultural perspective, “same-sex marriage” is without a commonly understood meaning, as it lacks the universal or defining feature of marriage according to sociological (religious), historical and anthropological evidence.[141]

107.                                  The law in the West has embraced, in part, an “Enlightenment” understanding of marriage, which gives increasing emphasis to a contractual perspective, that is, a voluntary agreement struck between a man and a woman who want to come together into an intimate association.  It is this conception that underpins the Halpern et al couples’ argument, as accepted by the Court below, that marriage is simply the recognition of a committed, intimate relationship between adults.  The evidence demonstrates, however, that this perspective complements, but does not displace, the existing Western (and universal) understanding about the utility and teleology of marriage as a uniquely monogamous and opposite-sex union.  This is evidenced, in part, by the universal recognition (with the legislated exception of one country) of marriage as the union of a man and woman to the exclusion of all others. [142]

108.                                  The fundamental meaning or essence of marriage can only be derived in reference to its history, including its religious origins.  It is not merely a legal status, or a creature of the common law, but a social practice and institution that has an independent and ordinary meaning, which is universally, understood – that is, the union of a man and woman.[143]

5)      The s.15 Tests

a)      Distinction or Differential Treatment

109.                                  Within the context outlined, marriage, by itself, does not produce a distinction or differential treatment between same-sex and opposite-sex couples.  Any difference in this case is one that is inherently embodied in the concept and meaning of the institution (or the definition, per se) and is not a distinction envisaged by the meaning of s.15 of the Charter.  The Charter guarantees the equal protection and benefit of the law and is not intended to recognize distinctions based simply in nomenclature.  That two persons of the same sex cannot be referred to as “married” does not constitute differential treatment between same-sex and opposite sex couples for Charter purposes.  Rather it relates to the unique nature of that relationship and the reality that it does not meet one of the core requirements of marriage.  By capturing the essence of marriage in the legal meaning it ascribes to it, the common law recognizes the inherent differences between opposite-sex and same-sex relationships.[144]

110.                                  The distribution of benefits and obligations may attach to the relationship of marriage.  But, clearly, it is not the definition of marriage, as captured in the common law that is the source of the differential treatment.[145]  Rather, the source is the individual provisions of legislation (which may each be remedied as appropriate) that provide the authority for the distribution of government benefits and obligations.

111.                                  It defies any proper application of the Charter to accept that the ordinary meaning of a word, in itself, provides a benefit when it is purely descriptive of that which it seeks to describe.  In the same way, can it constitute differential treatment to withhold the description “male” from a female if being described as “male” is believed to be beneficial in a particular context (e.g. on a written application form)?  Is it necessary to accord the term male to a female to accord females the same benefits and obligations as a male?  The deprivation of a unique descriptor that in reality cannot apply, according to its essence and ordinary meaning, does not withhold a benefit or result in a differential treatment, in a manner envisioned by s. 15(1) of the Charter.

112.                                  Since the recent enactment of the Modernization of Benefits and Obligations Act,[146] common-law same-sex couples receive substantive equal benefit and protection of the federal law.  While gay men and lesbians remain an historically disadvantaged group, same-sex couples are, insofar as benefits are concerned, no longer in a disadvantaged position within Canadian society as compared to opposite-sex couples.[147]  To the extent that distinctions in treatment between married couples and common-law couples remain, they are insignificant.  Alternatively, they may be considered and, if not justified, remedied by individual amendment to provide immediate access to any residual benefits and protections engaged by marriage.

113.                                  In the context of our federal system, each level of government has responsibility for different aspects of the matters that affect human relationships.  It has always been open to the provinces to effect the distribution of benefits and obligations based upon marital status.  In practice, they have done so because each relationship attracts legal consequences, and it is practical to organize such legislative provisions around existing social structures, such as marriage and similar relationships.

114.                                  The Supreme Court of Canada has made it clear that differential treatment that discriminates in the distribution of benefits or obligations to couples, based upon sexual orientation, whether or not they are married, is contrary to s. 15(1) of the Charter.  Governments, whether federal, provincial or territorial, are presently required to respond to this finding.[148]  But any discrimination that may flow from gaps in provincial or territorial legislation cannot result in a determination that the law in the federal sphere is unconstitutional.[149]

115.                                  Therefore, the definition of marriage does not draw a distinction between the Halpern et al couples and others, in either purpose or effect, when viewed in the context of the historical, biological and sociological basis for its opposite-sex requirement.  For these reasons, Mr. Justice Laforme erred in law in finding that marriage creates differential treatment for the purposes of the s.15(1) analysis.

b)     Enumerated or Analogous Grounds

116.                                  If this Court finds that marriage, by itself, imposes differential treatment, the Attorney General of Canada concedes that the sexual orientation of the Halpern et al couples, which is an analogous ground under s. 15(1) of the Charter, is the basis for such differential treatment.

c)      Discrimination

117.                                  In Law v. Canada, the Supreme Court of Canada clearly stated that not all legal distinctions will result in discrimination, even where those distinctions are based on enumerated or analogous grounds.  Equality does not necessarily require identical treatment.

…it is possible to understand the third element of the s. 15(1) inquiry as really being a restatement of the requirement that there be substantive rather than merely formal inequality in order for an infringement of s. 15(1) to have been made out.[150]

118.                                  The Supreme Court has rejected an interpretation based on either functional similarities[151] or formal equality between groups.  The essence of equality is the accommodation of differences. Iacobucci J made it clear in Law v. Canada that:

…there may be cases where a law which applies identically to all fails to take into account the claimant’s different traits or circumstances, yet does not infringe the claimant’s human dignity in so doing.  In such cases, there could be said to be substantively differential treatment between the claimant and others, because the law has a meaningfully different effect upon the claimant, without there being discrimination for the purpose of s.15(1).[152]

119.                                  The meaning of marriage seeks to recognize, by its very essence, a particular kind of relationship, albeit one that corresponds to the characteristics of a majority group in a majority of societies, as opposed to a minority group.  Nevertheless, as an idea and social institution, it remains uniquely suited to, and corresponds with, the particular needs of that majority group.  It would represent not only a formalistic approach, but also an overly simplistic application of the functional approach to equality to require, as a Charter right, identical treatment of same-sex and opposite-sex couples with respect to marriage.

d)     Human Dignity

120.                                  Human dignity may be described by a broad spectrum of ideas.  However, the concept relevant to the engagement of s.15(1) has been defined as “essential human dignity” or “innate human dignity.”[153]  The Supreme Court has indicated that this concept of human dignity “…does not relate to the status or position of the individual in society, per se, but rather concerns the manner in which the individual legitimately feels when confronted with a particular law [emphasis added].”[154]  As a result, a “reasonable person” standard, from the perspective of the claimant, is imposed.[155]  However, this standard requires an objective element as well as a subjective element, in order to meet the burden that “essential human dignity” is harmed. Clearly, every Charter claimant feels subjectively aggrieved in the circumstances of his/her case, but this measure of harm to dignity would render an unworkable analysis and untenable results in s.15 cases.  For this reason, the Supreme Court has set out four contextual factors (examined in the sections that follow), to assist in determining whether a claimant’s dignity is affected, although the list is not exhaustive.[156]

121.                                  In the broad social and historical context relating to the institution of marriage, the essential human dignity of couples in a same-sex relationship is not engaged by the inapplicability of marriage to their circumstances, when their subjective claim is viewed from an objective perspective.

122.                                  Even if it could be said that the lack of inclusion within the meaning of marriage, by itself, was a deprivation of a benefit under s. 15(1) of the Charter, the onus remains on the original applicants to establish that the deprivation would have the effect of perpetuating a view that any individual is less capable or worthy of recognition or value as a human being, or as a member of Canadian society, equally deserving of concern, respect and consideration.[157]  Once again, the anecdotal evidence of individual claimants, asserting that they feel less worthy as a consequence of the opposite-sex requirement of marriage, cannot meet the objective standards necessary to support the Charter claim.[158]  The court below erroneously relied on the plaintive pleas of the claimants and did not perform the correct analysis to objectively determine whether the claimants’ dignity is engaged.

123.                                  The Halpern et al couples did not discharge their onus and the Court below failed to determine this.  In the parallel proceeding to this case in British Columbia, Pitfield J. determined that:

…the issue before the court has nothing to do with the worth of any individual whether his or her preference is for a same-sex or opposite-sex relationship. [159]

e)      Disadvantaged Group

124.                                  Gay and lesbian people have been recognized as a disadvantaged group in Canada.  While pre-existing disadvantage/ vulnerability/ stereotyping of an affected group may often be an indicator that the impugned differential treatment is discriminatory, these factors are not determinative of discrimination.  As Iacobucci J. observed in Law, “There is no principle or evidentiary presumption that differential treatment for historically disadvantaged persons is discriminatory.”[160]  But, in any event, the limit in the definition of marriage is not based on stereotype – a misconception[161] – but on the naturally occurring bases of the institution the definition represents.

125.                                  Differential treatment of a group recognized as being historically disadvantaged is not automatically presumed to embody discrimination.  This point is made abundantly clear in the recent decision of Nova Scotia (Attorney General) v. Walsh.[162]  In that case, the Court’s previous declaration that cohabiting common law couples were historically disadvantaged did not lead to the conclusion that they suffered discrimination in the context of that case.  The Court did not find any diminution of dignity as a result of the exclusion of cohabiting common-law couples from the automatic property division provisions applicable to married couples.  Those provisions respond to the choice made by married partners and not to the choice made by persons in common law relationships.  However, the common law partners had other choices to arrange their economic interests, which would have the same or similar effects, if they wanted them.

f)       Correspondence with Needs, Capacities and Circumstances

126.                                  To the contrary of any presumption of disadvantage, the Supreme Court of Canada has recognized that distinctions drawn upon enumerated and analogous grounds have the potential to correspond with actual need, capacity, or circumstance.  As a general matter, legislation (or in the case of marriage, a societal institution) that excludes a claimant group, because its provisions do not accord with the actual needs, capacity, or circumstances of that group, yet treats them in a manner that respects their value as human beings and members of Canadian society, will be less likely to have a negative effect on human dignity.[163]  A distinction may not be discriminatory if it fits the needs, capacities and circumstances of the current recipients, but does not fit those of the claimants.  Marriage relates to the capacities, needs and circumstances of opposite-sex couples.  When this is the case, it is unlikely that the distinction objectively demeans the dignity of same-sex couples.  Because marriage is based on the biological and sociological realities of opposite-sex couples, the difference in treatment is appropriate in light of the distinctive capacities of the two groups.[164]

127.                                  In Law, for example, the Canada Pension Plan excluded the claimant, a widow, from survivor benefits based on the fact that she was under the age of 35 at the time of the contributor’s death.  It accurately (and without stereotype) reflected the ability of the claimant to survive without benefit of a spousal survivor’s pension created to meet the needs of and to ameliorate the conditions of the elderly recipients.  Therefore, despite the prohibited ground of discrimination, the legislation created a valid distinction, as age is generally a good indicator of an individual’s capacity to re-enter and succeed in the workforce.[165]

128.                                  As overwhelmingly demonstrated by the evidence, and discussed above, marriage is universally intended, across time, societies and legal cultures, as an institution to facilitate, shelter and nurture the unique union of a man and woman who, together, have the possibility to bear children from their relationship and shelter them within it.  The greatest number of children continues to be both the offspring of marriage and brought up by their parents together.[166]

129.                                  The purpose inherent in defining marriage as an opposite-sex institution, first in its social context and then in its legal one, was never designed to imply that same-sex couples are not deserving of respect; no such lack of respect is manifested by the opposite-sex requirement, per se.  Rather, because of the unique nature of the opposite-sex union, a choice is offered to them to formalize their relationship as marriage or live common-law.

130.                                  Apart from history and sociology, the Supreme Court of Canada has also looked to the legal context of an impugned law to determine whether the legal assumptions made in it are acceptable, even where those assumptions touch on a ground of discrimination.  In Law, the Court decided that one reason why the claimant should not have felt demeaned, objectively, by an age distinction in a survivor’s pension was that the impugned law used age as a factor in labour force attachment in a way that had been accepted by the courts and in its own jurisprudence.[167]

131.                                  An examination of the way the courts have developed rules relating to marriage (e.g. the consummation aspect of the capacity to marry) demonstrates the fundamental nature of the heterosexual characteristic of the institution.  These rules would require radical change and perhaps have to be repealed in order to include same-sex couples, since their continued application only to opposite-sex marriages might well be discriminatory.[168]  The same might be true of the consanguinity rules that would be less relevant to same-sex relationships.

132.                                  While marriage might have the ancillary effect of providing recognition and encouragement for the union of two committed adults of the opposite sex, this is not one of its purposes.  Instead, marriage is understood throughout time and cultures as an institution designed to meet the unique needs, capacities and circumstances of opposite-sex couples and their children – namely, an institution that brings together the two complementary sexes and provides a supportive environment for the birth and rearing of successive generations.[169]  In that sense, marriage is, uniquely, the descriptor of that institution through which a man and a woman relate to each other, their children and society.

g)     Amelioration of Conditions of a Group

133.                                  Marriage is a deep-rooted social institution.  As recognized by the Supreme Court in Egan, quoted above, it is of fundamental importance to all societies, providing a means, albeit not the only one, of serving and recognizing the realities of the goal of nurturing and protecting children.  As the vast majority of children continue to be the natural offspring of their parents’ opposite-sex relationships, these relationships are recognized as having specific needs, with which the legislatures and courts have justifiably been concerned.  As Justice La Forest wrote in Egan, with respect to the support given under legislation to opposite-sex couples who bring up the vast majority of children, “…this support does not exacerbate an historic disadvantage; rather it ameliorates an historic economic disadvantage ...”.[170]

h)     Nature and Scope of the Interest Affected

134.                                  In the Modernization of Benefits and Obligations Act[171], Parliament amended 68 federal statutes.  The first group of amendments extended to same-sex couples those benefits and obligations already available to married and common-law opposite-sex couples.  The second group of amendments extended to all unmarried couples, whether same or opposite-sex, some benefits and obligations that were available only to married couples.  The third group of amendments repealed or modified provisions where benefits and obligations could not be extended without creating an illogical result (for example, dower rights).  As a result, all couples cohabiting in a conjugal relationship, regardless of sexual orientation, receive equal treatment in the provision of federal benefits and obligations under 68 statutes.  The existence of this legislation precludes a finding of discrimination.[172]

6)      Conclusion

135.                                  In sum, marriage does not infringe s. 15(1) of the Charter using the analysis outlined in Law, because marriage by itself is not the source of differential treatment and its effects do not amount to “discrimination”.  While marriage may distinguish on the basis of sexual orientation, the meaning of marriage is not the product of stereotypical categorizations or assessments of the relative worth of individuals.  Instead, the meaning of marriage differentiates between same-sex and opposite-sex couples only on the basis of capacity or need.  The result is that marriage does not come within the range of invidious distinctions which s. 15(1) was designed to eliminate.

D.     Section 1

1)      Application of the s. 1 Analysis

136.                                  Section 1 of the Charter provides:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.[173]

137.                                  If the Divisional Court did not err in determining that marriage constitutes a limit on the Halpern et al couples’ Charter rights, the Court nonetheless erred in the application of the s. 1 tests for justification.  Although marriage is defined at common law, rather than in specific legislation, s.1 must be applied to the common law as it is to legislative Charter violations.[174]  The Court below performed a s.1 analysis, albeit truncated, because it did not believe it was strictly necessary[175].  However, the Court erred in the conclusion that it reached.

138.                                  A full s.1 analysis is necessary in this case because the legislative history relating to marriage in Canada reveals that, in effect, marriage has been “prescribed by law”.  The Divisional Court erred in holding that no federal statutory definition of marriage exists.[176]  Parliament’s clear legislative intent with respect to the definition of marriage was explicitly expressed both directly, through recently enacted legislation and, by necessary implication, in longer-standing statutory provisions based on this definition.

139.                                  The meaning of marriage has been “expressly provided for by statute” in two recent federal enactments, namely the Modernization of Benefits and Obligations Act, [177] which reaffirms the common law definition, and the Federal Law - Civil Law Harmonization Act, No. 1[178], applicable only in Quebec. The two statutes state, respectively:

For greater certainty, the amendments made by this Act do not affect the meaning of the word "marriage", that is, the lawful union of one man and one woman to the exclusion of all others.

-and-

Marriage requires the free and enlightened consent of a man and a woman to be the spouse of the other.

140.                                  The opposite sex meaning of marriage also results “by necessary implication from” the terms of statutes relating to marriage, or prohibited degrees of consanguinity, as well as divorce.  Further, it results from the “operating requirements” of federal and provincial statutes[179] based on this same definition.  Through these pieces of legislation, Parliament’s legislative intent regarding the definition of marriage has been clear and unequivocal.  Therefore, the full s.1 test applies to the determination of the definition’s constitutional validity.

141.                                  In any event, if the meaning of marriage is found to exist at common law alone, a limit resulting from common law is, nonetheless, “prescribed by law,” requiring a s. 1 analysis.  In R. v. Therens, LeDain J. held:

The requirement that the limit be prescribed by law is chiefly concerned with the distinction between a limit imposed by law and one that is arbitrary.  The limit will be prescribed by law within the meaning of section 1 if it is expressly provided for by statute or regulation, or results by necessary implication from the terms of a statute or regulation or from its operating requirements.  The limit may also result from the application of a common law rule.[180]

142.                                  Also, in R. v. Robinson, Lamer C.J., stated:

Since we are dealing with a judge made rule rather than with a legislative enactment, I am of the view that a strict application of the Oakes test … and in particular of the proportionality prong of that test, is appropriate.[181]

2)      The s. 1 Tests

a)      Contextual Approach

143.                                  In Thomson Newspapers, Bastarache J. held that the analysis under s.1 of the Charter will be shaped by the context of the impugned provision.[182]  It is necessary therefore to examine the legislative context as it informs “the type of proof which a court can demand of the legislator to justify its measures under section 1”[183] as well as “the degree of deference which the court should accord to Parliament’s choice.”[184]

144.                                  The context in this case included evidence on the social and legal history of marriage[185] and its place as one of the foundational institutions of Western society, and indeed, its universality.  The evidence of its biological and social realities is also part of the context in which the state is justified in maintaining a distinct definition for this primordial and pre-legal institution.[186]

145.                                  It is a fundamental principle of a democratic society that its values and priorities are mirrored by the legislative actions of its elected officials.  Parliament has confirmed, on a number of occasions, that an important aspect of Canadian society is the institution of marriage.[187]  During the Marriage Resolution debates, parliamentarians asserted the important role marriage plays in our society.[188]  During the Modernization of Benefits and Obligations debate, again, our elected representatives overwhelmingly supported the common law concept of marriage as being the union of one man and one woman.[189]

b)     Pressing and Substantial Objective

146.                                  When dealing with the justification for a common law rule generally, the task of the Court is to construe the overall objective of the rule that has been enunciated by the courts.[190]  Mr. Justice LaForme, speaking for the Court in his reasons for judgment on s.1, erred in conducting this part of his analysis, as he held that the objective of the common law definition of marriage could be reduced to one aspect only, procreation. [191]

147.                                  As a result of this error, the Court proceeded to ask the wrong question with respect to the purpose and objectives of the definition of marriage; that is, “…is the exclusion of lesbians and gays from entering into the institution of marriage because of the perceived inability of them to naturally procreate pressing and substantial?”[192]

148.                                  The evidence presented by the Attorney General of Canada revealed that there are several significant and multi-faceted objectives to maintaining the current meaning of marriage.  This evidence demonstrated that marriage is a foundational unit for society and it effectively serves a number of important social functions.  It is the relationship that brings together the two human sexes in a manner that reflects their complementary natures and is the institution within which children are a biological possibility and within which children are generally born.  As a core unit in society marriage benefits society at large, in that it has proven itself to be one of the most durable institutions for the organization of society, its continuity and the perpetuation of humanity.[193] 

149.                                  Marriage also serves as a model for the way in which society extends support to similar relationships, with appropriate and necessary distinctions, according to their need and capacity.

150.                                  Therefore, while biological realities support the important objectives of marriage, it is neither the only objective nor is it a recently developed criterion that is designed to exclude, as concluded by Mr. Justice LaForme.[194]  Rather, marriage has always been understood, through time[195], as a special kind of monogamous opposite-sex union with spiritual, social, economic and contractual dimensions, for the purposes of uniting the two opposite sexes, encouraging the birth and raising the children of the marriage, and for companionship.

151.                                  The common law meaning of marriage aims to attain an objective that is pressing and substantial.  While marriage has other purposes, which are hardly unimportant – such as the provision of “emotional, psychological, social and material benefits” – they do not alone constitute the “ultimate raison d’être”[196] of the challenged definition.  Moreover, as the Court indicated in Walsh and Bona, they may be realized by other means[197], which do not necessitate a fundamental change to this foundational unit of society.

c)      Rational Connection

152.                                  Mr. Justice LaForme erred in concluding that the definition of marriage is not rationally connected to its objective because it is over-inclusive, as it allows non-procreative heterosexuals to marry, and under-inclusive, because it denies same-sex parents the right to marry.[198]

153.                                  The rational connection for the opposite-sex nature of marriage is self-evident if the Court considers its universality[199], the fact that it has served humanity well for centuries and its effectiveness in bringing the two sexes together, in sheltering children and in providing a stable institution in society.

154.                                  The objective of protecting and promoting marriage as the primary institution by which society maintains itself is logically served by – and therefore is rationally connected to – maintaining the definition of marriage as the union of one man and one woman.  The definition is not “arbitrary, unfair or based on irrational considerations.”[200]

155.                                  It is true, of course, that same-sex couples and some opposite-sex couples have turned to medical means of having children (through the use of third parties).  However, this should not alter the s.1 justification.  The justification relates to the purposes of the institution and not to the circumstances of any individual couple who may not meet the objectives.  By this logic, any spouse who is not able to provide the requisite “companionship”, which Blair R.S.J. found to be the principal objective of marriage, should not be permitted to remain married.  A key component of opposite-sex marriage is that it represents the rational possibility of children, rooted in biological reality, whether actualized or not.[201]

d)     Minimum Impairment

156.                                  Mr. Justice LaForme erred by failing to fully consider there is no other way to achieve Parliament’s objectives than to maintain this unique opposite-sex relationship recognized in the requirements of marriage reflected in the common law and re-confirmed by statute.[202]

157.                                  While the Halpern et al couples claim that same-sex relationships should be assimilated with opposite-sex marriages to serve important interests, this would not address the concern that such a transformation would profoundly change the very essence of one of the fundamental institutions of our society.

158.                                  The Ontario Law Reform Commission appears to agree that the desirable policy course in these circumstances is not necessarily to extend the concept of marriage, thereby undermining its ultimate rationale, but rather to consider whether there might be a régime that suits the needs of same-sex couples, and perhaps even dependant non-conjugal relationships.[203]  This has been accomplished elsewhere[204] and tends to confirm that there may well be more appropriate ways in which to provide the benefits of legislative recognition and support same-sex couples and perhaps even support other kinds of enduring relationships.[205]

159.                                  It is not inevitable that all the legal consequences, benefits and obligations that attach to the term marriage are also appropriate for same-sex couples.[206]  For instance, consanguinity prohibitions may be questionable.  For that reason, it might well be more appropriate to deal with same-sex relationships – and, indeed, perhaps even with other kinds of enduring relationships, whether of a conjugal nature or not – by some other means.

160.                                  The means chosen by the government, sustaining the opposite-sex meaning of marriage while extending equal benefit and protection to same-sex relationships, infringes the Halpern et al couples’ rights as little as reasonably possible.  The claimants have achieved virtually all of the benefits that flow from marriage in both the public recognition of their relationships and in their receipt of almost all of the federal benefits and obligations of marriage through the passage of The Modernization of Benefits and Obligations Act.

e)      Proportional to the Objective

161.                                  On this branch of the s. 1 inquiry, the question is whether the deleterious effects caused by excluding same-sex couples from the definition of marriage are so severe that the common law rule cannot be justified by the purposes it is intended to serve.

162.                                  It is submitted that LaForme J. erred in holding that the marginalization and the historical disadvantage suffered by gays and lesbians has been caused by their legal incapacity to marry.[207]  This conclusion is not supported by any objective evidence.  There is no support for the conclusion that the inability of same-sex couples to participate in a particular institution conveys “the ominous message that they are unworthy of marriage”[208], especially considering virtually all the benefits that flow from marriage have been accorded to them by Parliament.

163.                                  Further, all other “material benefits” from which they have been excluded are not conferred by the common law, but by particular statutory regimes which operate in specific contexts.  These benefits have now been provided federally and in many provinces and territories to same-sex couples.  Thus, the adverse effect of the challenged law is that it does not extend to same-sex relationships the identical recognition that is accorded to opposite-sex couples in relation to an institution that is, by its nature, the union of individuals of the opposite sex.

164.                                  The effect produced by the challenged law is relatively limited in comparison with the whole range of effects that are experienced by gays and lesbians on account of historical prejudice or the treatment afforded them by other laws, which distinguish, directly or indirectly, on the basis of sexual orientation.  In these circumstances, it is submitted that the limitation is proportional to the importance of the objective.

165.                                  Lastly, there is proportionality between the effects of any infringement on the couples’ Charter rights and the government’s objective. Their Charter rights are possibly infringed only to the extent that the formal recognition is not available to them. However, when balanced against the potential detrimental effects of radically changing one of Canadian society’s most deeply-rooted and fundamental institutions, within which the preponderance of Canadians bear and raise their children, the government’s objective outweighs any detrimental effects on same-sex couples.[209]

166.                                  There is no proportionality in the prospect of radically changing the definition of marriage to include same-sex couples when all the potential effects of doing so are unforeseeable. [210]

f)       Other Free and Democratic Societies

167.                                  The Divisional Court erred by failing to give due consideration to the fact that nowhere in the world, with the sole exception of the Netherlands, has marriage been changed to include a union of two persons of the same sex.  On the contrary, in the United States of America, at least thirty-three state legislatures have either rewritten their marriage laws, or restated the definition of marriage, based on an opposite-sex requirement.  Moreover, the U.S. federal government enacted the Defense of Marriage Act (“DOMA”) to provide an exception to the Full Faith and Credit clause in the United States Constitution. [211]

168.                                  In the United Kingdom, both legislation and jurisprudence have confirmed that marriage is a union between a man and a woman and that a marriage between two persons of the same gender would be considered void.[212]

169.                                  The justification for retaining the pre-legal definition of marriage[213] is strengthened by a single reality of the 21st century -- all jurisdictions in the world, with the sole exception of the Netherlands, define marriage in the same way. (Even in the Netherlands marriage for same-sex couples is not absolutely identical. For example, legislation limits the effect of same-sex marriages to domestic purposes.)[214]

170.                                  In the Nordic European countries, as well as in continental Europe, various alternative models have been adopted to give recognition and effect to same-sex relationships.[215]  Where countries have taken a legislative approach, the solutions vary from models limited to the regulation of the financial and property aspects of the relationships, to models with certain effects linked to the personal commitment of the parties, to the registered partnership model wherein the couple receives most of the effects of marriage. [216]  However, even in those countries considered to be more “socially progressive”, marriage has not been altered and it remains a heterosexual institution.[217]   Indeed, in Norway, a report published in 1993 by the Ministry of Children and Family Affairs emphasized the importance of marriage as follows:

[M]arriage is the most fundamental social unit and the national framework for bringing up children.  Marriage has a unique status, and no provision is proposed for marriage between homosexuals.  The Bill employs the expressions “registration” and “partnership”. The terms “wedlock” and “marriage” are reserved for heterosexual marriage, with its ideological and religious status.[218]

171.                                  Therefore, the situation in the Netherlands, where marriage has been extended as of April 1, 2001, to same-sex couples, is unique and based on the particular culture and a set of previous legal developments in that country.  In all other jurisdictions where there have been discussions on improving the situation of same-sex couples and on recognizing same-sex relationships, the extension of marriage to same-sex couples has been rejected in favour of alternative forms of legal recognition.

172.                                  The New Zealand Court of Appeal considered the opposite-sex limits of the “right to marry” in an international convention through the reference to “men and women” in the English text.[219]  Keith J. stated:

The explicit limiting reference to “men and women” is emphasized by the fact that throughout the other substantive provisions of the Covenant general wording is used to identify the beneficiary of the rights: everyone, anyone, (all) persons, no one…;  If a further indication is needed that the right to marry is limited to opposite sex couples it appears from the French and Spanish texts of article 26 (and from the French text of the Universal Declaration) which refer in the singular to the right of a man and a woman to marry, thereby removing any possible semantic argument based on the use of the plural in the English context.

g)     Deference to Parliament on Issues of Complex Social Policy

173.                                  Finally, it is submitted that the majority of the Divisional Court was correct in providing deference to Parliament, at least on a conditional basis.  LaForme J. erred in concluding that this was not a case where deference should be paid to Parliament.  The role of the legislature demands deference from the courts for those complex social policy decisions that the legislature is best able to make.[220] Clearly, the societal concerns relating to marriage, as the foundational institution in modern society, are extremely complex.[221]

174.                                  In any event, the Court should defer to the legislature where the required change to the common law is not incremental.  Justice LaForme erroneously concluded that expanding the definition of marriage was incremental.[222]  Moreover, Parliament’s intent with respect to the meaning of marriage as an opposite-sex union has been clearly stated.  The common law definition has been, in effect, “prescribed by law” in two recent federal statutes.  The Court should continue to accord deference to the manner in which Parliament chooses to deal with this issue.

h)     Conclusion

175.                                  For all of these reasons, the Attorney General has met the tests to justify maintaining the definition of marriage as the union of one man and one woman. Considering the fundamental importance of the core societal institution and the manner in which the definition embodies all the human elements of the unique relationship between a man and a woman, the change demanded by the Halpern et al couples exceeds what their constitutional rights were designed to bear.

PART V – ORDER SOUGHT

176.                                  The Attorney General of Canada respectfully requests that the two appeals be allowed, that the common law definition of marriage be upheld as constitutional, and that costs follow the event.

 

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Dated at Toronto this January 10, 2003.

 

 

Roslyn J. Levine, Q.C.,

Solicitor for the Appellant, the Attorney General of Canada

 

CERTIFICATE

An Order under subrule 61.09(2) has been obtained further to a motion for directions, signed December 17, 2002.

 

Counsel estimates that 8 hours is required for oral argument on the appeals and response to the cross-appeals, excluding reply.

 

 

TO:

 

 

Ms. Martha McCarthy & Ms. Joanna Radbord

Epstein, Cole

Barristers

Box 52 – 401 Bay Street

32nd Floor, The Simpson Tower

Toronto, Ontario M5H 2Y4

(416) 862-9888/ (416) 862-2142

 

Solicitors for the Applicants (Respondents in Appeal)

 

 

 

 

Mr. R. Douglas Elliott & Ms. V. Paris

McGowan Elliott & Kim

Barristers/ Solicitors

Suite 1400, 10 Bay Street

Toronto, Ontario M5J 2R8

(416) 362-1989/ (416) 362-6204

 

Solicitors for the Applicant (Respondent in Appeal) and Intervener, Metropolitan Community Church of Toronto

 

 

 

 

Mr. Robert E. Charney & Ms. Lisa Solmon

Counsel, Constitutional Law Branch

Ministry of the Attorney General

720 Bay Street

8th Floor

Toronto, Ontario M5G 2K1

(416) 326-4452 or 4476/ (416) 326-4015

 

Solicitors for the Attorney General of Ontario

 

 

 

 

Ms. Leslie Mendelson & Mr. Roberto Zuech

Legal Services Division

City of Toronto, New City Hall

100 Queen Street West

13th Floor, West Tower

Toronto, Ontario M5H 2N2

(416) 392-7246 or 7244/ (416) 392-1199

 

Solicitors for Novina Wong, The Clerk of the City of Toronto

 

 

 

 

Ms. Cynthia Petersen & Ms. Vanessa Payne

Sack Goldblatt Mitchell

Barristers & Solicitors

20 Dundas Street West, Suite 1130

P.O. Box 180

Toronto, Ontario M5G 2G8

(416) 979-6440/ (416) 591-7333

 

Solicitors for the Intervener, EGALE Canada Inc.

 

 

 

 

Mr. David M. Brown

Stikeman Elliott

Barristers & Solicitors

Commerce Court West, Suite 5300

P.O. Box 85, Stn. Commerce Court West

Toronto, Ontario M5L 1B9

(416) 869-5602/ (416) 947-0866

 

Solicitor for the Intervener, The Association for Marriage and the Family in Ontario

 

 

 

 

Mr. Peter R. Jervis, Ms. Jasmine Akbarali & Mr. Bradley Miller

Lerner & Associates

Barristers & Solicitors

130 Adelaide Street West, Suite 2400

Toronto, Ontario M5H 3P5

(416) 601-2356/ 867-9192

 

Solicitors for the Intervener, The Interfaith Coalition on Marriage and Family

 

 

 


 

SCHEDULE “A”

 

List of Authorities Referred To

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143

Communication No. 902/1999, Joslin et al. v. New Zealand (views adopted 30 July 2002, 75th Sess.), Report of the Human Rights Committee, 75th Sess., U.N. Doc. No. CCPR/C/75/D/902/1999 (Jurisprudence)

    

Dunmore v. Ontario (A.G.), 2001 SCC 94

EGALE v. Canada (2001), 88 C.R.R. (2d) 322 (B.C.S.C.)

Egan v. Canada, [1995] 2 S.C.R 513

Gosselin v. Quebec (Attorney General), 2002 SCC 84

Granovsky v. Canada, [2000] 1 S.C.R. 703

Haig v. Canada, [1993] 2 S.C.R. 995

Halpern v. Canada (Attorney General) (2002), 60 O.R. (3d) 321 (S.C.J., Div.Crt)

Hendricks v. Québec (Attorney General), [2002] J.Q. No. 3816 (S.C.)

Housen v. Nikolaisen, 2002 SCC 33

Hyde v. Hyde and Woodmansee (1866), L.R. 1 P&D 130

Lavoie v. Canada, 2002 SCC 23

Law v. Canada, [1999] 1 S.C.R. 497

Layland v. Ontario (Minister of Consumer & Commercial Relations) (1993), 14 O.R. (3d) 658 (Gen. Div.), leave to appeal to the Court of Appeal granted, but not pursued

 

Lovelace v. Ontario, [2000] 1 S.C.R. 950

M. v. H., [1999] 2 S.C.R. 3

Miron v. Trudel, [1995] 2 S.C.R. 418

Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83

Quilter et. al. v. The Attorney-General of New Zealand, [1998] 1 N.Z.L R. 523 (C.A.)

 

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295

R. v. Hess; R. v. Nguyen, [1990] 2 S.C.R. 906

R. v. Oakes, [1986] 1 S.C.R. 103

R. v. Robinson, [1996] 1 S.C.R. 683

R. v. Swain, [1991] 1 S.C.R. 933

R. v. Therens, [1985] 1 S.C.R. 613

R. v. Turpin, [1989] 1 S.C.R. 1296

Re Therrien, [2001] 2 S.C.R. 3

Rees v. United Kingdom, [1986] 9 E.H.R.R. 56

RJR MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199

 

Thomson Newspapers, [1998] 1 S.C.R. 877

Vancouver Society of Immigrant Women v. Canada, [1999] 1 S.C.R. 10

Watkins v. Olafson, [1989] 2 S.C.R. 750

 

Weatherall v. Canada, [1993] 2 S.C.R. 872

Winko v. British Columbia, [1999] 2 S.C.R. 625

 

Secondary Sources

 

W.H. McConnell, Commentary on the British North America Act (Toronto: MacMillan, 1977)


SCHEDULE “B”

Relevant constitutional provisions

 

 

1.         Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11, ss. 15(1) and 1

 

2.         Constitution Act 1867, 30 & 31 Victoria, c.3 (U.K.), ss. 91-92

 

 

Relevant statutory provisions

 

Federal legislation

 

3.         Canada Evidence Act, R.S.C 1985, c.C-5, s.4

4.         Citizenship Act, R.S.C. 1985, c.C-29, s.11(2)

5.         Federal Law - Civil Law Harmonization Act, No. 1, S.C. 2001, c.4, s.5

6.         Marriage (Prohibited Degrees) Act, S.C. 1990, c. 46

7.         Modernization of Benefits and Obligations Act, S.C. 2000, c.12, s.1.1

 

Provincial Legislation

 

8.         Marriage Act, R.S.O. 1990, c.M.3

 

 


 

C39172, C39174

 

 

 

HALPERN et al.

and

the attorney general of canada et al

 

Respondents on Appeal

Appellant

 

 

 

 

 

court of appeal for ONTARIO

 

Proceeding Commenced at Toronto

 

 

 

 

factum of the appellant, the attorney general of canada

 

 

 

 

 

 

Department of Justice

Ontario Regional Office

The Exchange Tower

130 King Street West

Suite 3400, Box 36

Toronto, Ontario

M5X 1K6

 

Per:               Roslyn J. Levine, Q.C.

Tel:                (416) 973-9201

Fax:               (416) 952-0298

Our File:        2-459337-1

Law Society No.:  17838

 

Solicitors for the Attorney General of Canada

 

 

 

 

 



[1] Appeal Book, Tabs 6, 7

[2] Appeal Book, Tab 8, Halpern v. Canada (Attorney General) (2002), 60 O.R. (3d) 321 (S.C.J., Div.Crt.), [ Referred to hereinafter as the “Halpern” case ] 

[3] Appeal Book, Tabs 9, 14

[4] Appeal Book, Tab 15

[5] Appeal Book, Tab 16, Consent endorsement of Lang J., dated January 25, 2001, pp. 256, 258

[6] Hyde v. Hyde and Woodmansee (1866), L.R. 1 P&D 130 at 133

[7] Affidavit of John Witte Jr., Respondent’s Record, Volume 1, Tab B

[8] Affidavit of John Witte Jr., Respondent’s Record, Volume 1, Tab B, pp. 168-9, 200, paras. 1, 3, 4, 64

[9] Affidavit of Katherine Young, Respondent’s Record, Volume 2A, Tab F

[10] Affidavit of Katherine Young, Respondent’s Record, Volume 2A, Tab F, pp. 685, 703-722, paras. 1, 2, 34-70

[11] Affidavit of Katherine Young, Respondent’s Record, Volume. 2A, Tab F, pp. 741-742, para. 110

[12] Affidavit of Edward Shorter Respondent’s Record, Volume 2, Tab C-1

[13] Affidavit of Edward Shorter, Respondent’s Record, Volume 2, Tab C-1, pp. 394-395, 409-410, 442-443, paras. 2, 3, 35-36, 98

[14] Affidavit of Stephen Cretney, Respondent’s Record, Volume 1, Tab A, pp. 2-3, 21-22, paras. 2, 33

[15] Affidavit of Bea Verschraegen, Respondent’s Record, Volume 3, Tab G

[16] Affidavit of Bea Verschraegen, Respondent’s Record, Volume 3, Tab G, pp. 776-777, 883, paras. 2, 230-233

[17] Affidavit of Sanford Katz, Respondent’s Record, Volume 4, Tab H, 1075, 1098-1100, paras. 2, 59-63

[18] Affidavit of Evelyne Lapierre-Adamcyk, Respondent’s Record, Volume 2, Tab D-1 (Fr.) & D-2 (Eng.), pp. 619(-2)-619(-3), 619(-5)-619(-7), 619(-11)-619(-12), 619(-14)-619(-15), paras. 2, 7-11, 22, 28-29

[19] Affidavit of Suzanne Scorsone, Respondent’s Record, Volume 2A, Tab E, pp. 636, 675-678, para. 29, Exhibit 3

[20] Affidavit of Douglas Allen, Respondent’s Record, Volume 4, Tab I, pp. 1271, 1274, 1278-1279, 1297, paras. 1-3, 11, 21-22, 67

[21] The 13th expert affiant for Canada was Prof. Margaret Somerville, Founding Director of the McGill Centre of Medicine, Ethics and Law, Montreal.  Her affidavit describes the process for an ethical analysis (as opposed to a legal one) as background to the issue of remedies (Respondent’s Record, Volume 4, Tab J).

[22] Affidavit of Dwight Duncan, Respondent’s Record, Volume 5, Tab M, p. 1617, para. 1

[23] Affidavit of Robert Stainton, Respondent’s Record, Volume 5, Tab K, pp. 1475, 1477, 1478-1479, 1505, paras. 1, 5, 10, 63

[24] Affidavit of Stephen Nock, Respondent’s Record, Volume 5, Tab L, pp. 1523-1524, 1559-1561, paras. 1-4, 112-119

[25] Hyde v. Hyde and Woodmansee (1866), L.R. 1 P&D 130 at 133

[26] EGALE Canada Inc. v. Canada (Attorney General) (2001), 88 C.R.R. (2d) 322 (B.C.S.C.) at 338-340

[27] Affidavit of Stephen Cretney, Respondent’s Record, Volume 1, Tab A, p.7, para. 12

[28] Affidavit of Stephen Cretney, Respondent’s Record, Volume 1, Tab A, pp. 11-12, 97-99, para 19, Exhibit 4

[29] Affidavit of Stephen Cretney, Respondent’s Record, Volume 1, Tab A, p. 10, para 16

[30] An Act for the better preventing of clandestine Marriages. 26 George II, c.33 (1753), Respondent’s Record, Volume 6, Tab N 1

[31] An Act for amending the Laws respecting the solemnization of Marriages in England, 4 George IV, c.76 (1823) Respondent’s Record, Volume 6, Tab N 2; An Act for Marriages in England, 6 & 7 William IV (1836), c. 85, Respondent’s Record, Supplementary Volume 1, Tab A. For example, see: An Act to confirm and make valid certain Marriages heretofore contracted in the Country now comprised within the Province of Upper Canada, and to provide for future solemnization of Marriage within the same, 33 George III, c. 5 (1793) Respondent’s Record, Volume 10, Tab Q 2

[32] Acte pour pourvoir à la codification des lois du Bas-Canada qui se rapportent aux matières civiles et à la procédure, L.C. 1857, c. 43; An Act to provide for the Codification of the Laws of Lower Canada relative to Civil matters and Procedure, L.C. 1857, c. 43, Respondent’s Record, Volume 13, Tab R 4

[33] See, for example articles 115 to 127:  “The Qualities and Conditions Necessary for Contracting Marriage”, Respondent’s Record, Volume 12, Tab R 1, pp. 4076-4080

[34] Code civil, 1866-1980:  An Historical and Critical Edition / Code civil, 1866-1980 : Édition historique et critique,  Paul-A. Crépeau and John E.C. Brierley, eds., Montréal, Société québécoise d'information juridique, 1981 (excerpts), Respondent’s Record, Volume 12, Tab R 1, pp. 4078-4080

[35] Constitution Act, 1867, Respondent’s Record, Volume 6, Tab P 1, pp. 1928-1931

[36] See: Index to Parliamentary Debates on the subject of the Confederation of the British North Parliamentary Debates American Provinces, 3rd sess., 8th Parl., at 1-6, 15-18, 22, 30-32, 39, 41, 46-47, 175-177, 189-193, 266-269, 333-336, 342-345, 384-390, 408-411, 502-506, 577-581, 690-692, 701-702, 775-787, 825-835, 845-850, 856-860, 876-878, 906-912, Respondent’s Record, Volume 6, Tab O3 and O4

[37] Bill S-14, An Act respecting the laws prohibiting marriage between related persons, Minutes of Proceedings and Evidence of Legislative Committee, 24 October 1990, 8 November 1990, House of Commons, 2nd sess., 34th Parl., Respondent’s Record, Volume 7, Tab P 18, pp. 2255, 2266-2267

[38] An Act concerning Marriage and a Deceased Wife’s Sister, S.C. 1882, c. 42, Respondent’s Record, Volume 6, Tab P 4; House of Commons Debates, 4th sess., 6th Parl. at 4035, Respondent’s Record, Volume 6, Tab P 5

[39] An Act to amend an Act concerning Marriage with a Deceased Wife’s Sister, S.C. 1890, c.36, Respondent’s Record, Volume 6, Tab P 6

[40] Marriage and Divorce Act, R.S.C. 1952, c. 176, Respondent’s Record, Volume 6, Tab P 10

[41] Bill S-2, An Act to amend and consolidate the laws prohibiting marriage between related persons, 1st sess., 33rd Parl. (Sixth Proceedings, 30 October 1985, Standing Senate Committee on Legal and Constitutional Affairs), Respondent’s Record, Volume 7, Tab P 16; Bill S-14, An Act respecting the laws prohibiting marriage between related persons, 2nd sess., 34th Parl. (Minutes of Proceedings and Evidence of Legislative Committee 24 October 1990, 8 November 1990, House of Commons)¸ Respondent’s Record, Volume 7, Tab P 18

[42]  Marriage (Prohibited Degrees) Act, S.C. 1990, c.46, Respondent’s Record, Volume 7, Tab P 19

[43] Report of the Special Joint Committee of the Senate and House of Commons on Divorce. Ottawa: Information Canada, 1967, Respondent’s Record, Volume 7, Tab P 12, pp. 2033-2039

[44] Report of the Special Joint Committee of the Senate and House of Commons on Divorce. Ottawa: Information Canada, 1967, Respondent’s Record, Volume7, Tab P 12, pp. 2033-2039

[45] House of Commons Debates, 1st sess., 4th Parl. at 1878 –2011, Respondent’s Record, Volume 6, Tab P 5; An Act for the Relief of Eliza Maria Campbell, S.C. 1879. c. 79, Respondent’s Record, Volume 6, Tab P 3; Report of the Special Joint Committee of the Senate and House of Commons on Divorce. Ottawa: Information Canada, 1967, Respondent’s Record, Volume 7, Tab P 12, pp. 2039-2041

[46] The Divorce Act, S.C. 1967-8, c.24, Respondent’s Record, Volume 7, Tab P 13

[47] Affidavit of Douglas Allen, Respondent’s Record, Volume 4, Tab I, pp. 1247, 1277, paras. 11, 18; The Divorce Act, S.C. 1967-8, c.24, s. 2(e), Respondent’s Record, Volume 7, Tab P 13.

[48] Divorce Act, R.S.C. 1985, c.3 (2nd supp.), Respondent’s Record, Volume 7, Tab P 17

[49] Marriage Act, R.S.O. 1990, c. M.3, Respondent’s Record, Volume 11, Tab Q 49

[50] Marriage Act, R.R.O. 1990, Reg. 738, Respondent’s Record, Volume 11, Tab Q 50

[51] Marriage Act, R.S.O. 1990, c. M.3, Respondent’s Record, Volume 11, Tab Q 49, p. 3755

[52]Marriage Act, R.R.O. 1990, Reg. 738, Respondent’s Record, Volume 11, Tab Q 50, p. 3762

[53] Book Two (“the Family”) Title One (“Marriage”) deals with marriage, its solemnization, its proof and nullity, its effects, matrimonial regimes and separation from bed and board

[54] Code civil du Québec / Civil Code of Québec, L.Q./S.Q., 1991, c. 64, as amended, sous la direction de J.-L. Baudouin et Y. Renaud, éd. feuilles mobiles, Montréal, Wilson & Lafleur, Respondent’s Record, Volume 13, Tab R 3, p. 4367

[55] M. v. H., [1999] 2 S.C.R. 3

[56] Modernization of Benefits and Obligations Act, S.C. 2000, c.12, Respondent’s Record, Volume 10, Tab P 32; Bill C-23, An Act to modernize the Statutes of Canada in relation to benefits and obligations, 2nd sess., 36th Parl. (Minutes and Evidence, 29 February 2000 –29 March 2000, Standing Committee on Justice and Human Rights) at 2423, Respondent’s Record, Volume 8, Tab P 23

[57] Bill C-23, An Act to modernize the Statutes of Canada in relation to benefits and obligations, 2nd sess., 36th Parl. (first reading, 11 February 2000, House of Commons), Respondent’s Record, Volume 7, Tab P 21; Bill C-23, An Act to modernize the Statutes of Canada in relation to benefits and obligations, House of Commons Debates, 2nd sess., 36th Parl., vol. 136 at 3581-3561, 3765-3820, Respondent’s Record, Volume 7, Tab P 22; Bill C-23, An Act to modernize the Statutes of Canada in relation to benefits and obligations, House of Commons Debates, 2nd sess., 36th Parl., vol. 136 at 5530, 5592-5620, 5718-5719, 5852, 5872-5933, 5937-6000, 6059, Respondent’s Record, Volume 9, Tab P 25; Bill C-23, An Act to modernize the Statutes of Canada in relation to benefits and obligations, 2nd sess., 36th Parl. (as passed by the House of Commons, April 11th, 2000), Respondent’s Record, Volume 9, Tab P 26

[58] Bill C-23, An Act to modernize the Statutes of Canada in relation to benefits and obligations, 2nd sess., 36th Parl. (Minutes and Evidence, 29 February 2000 –29 March 2000, Standing Committee on Justice and Human Rights), Respondent’s Record, Volume 8, Tab P 23, p. 2424

[59] Bill C-23, An Act to modernize the Statutes of Canada in relation to benefits and obligations, 2nd sess., 36th Parl. (second report, Standing Committee on Justice and Human Rights), Respondent’s Record, Volume 9, Tab P 24

[60] Modernization of Benefits and Obligations Act, S.C. 2000, c.12, Respondent’s Record, Volume 10, Tab P 32, p. 3257

[61] Bill C-23, An Act to modernize the Statutes of Canada in relation to benefits and obligations (Minutes and Evidence, 10 May 2000, 17 May 2000, 18 May 2000, Standing Committee on Justice and Human Rights), Respondent’s Record, Volume 9, Tab P 28, p. 3062

[62] Parliamentary Motion, House of Commons Debates, 1st sess., 36th Parl., vol 135 at 15960-15993, 16034-16036, and 16068-16069 (8 June 1999), Respondent’s Record, Volume 7, Tab P 20, p. 2278; and see – Bill S-9, An Act to remove certain doubts regarding the meaning of marriage, 1st sess., 37th Parl. (first reading, 31 January 2001, Senate of Canada), Respondent’s Record, Volume 10, Tab P 33; Bill C-266, An Act to amend the Marriage (Prohibited Degrees) Act in order to protect the legal definition of marriage by invoking s. 33 of the Canadian Charter of Rights and Freedoms, 1st sess., 37th Parl. (first reading, 14 February 2001, House of Commons), Respondent’s Record, Volume 10, Tab P 34; Bill C-264, An Act to amend the Marriage (Prohibited Degrees) Act (marriage between persons of the same sex), 1st sess., 37th Parl. (first reading, 14 February 2001, House of Commons), Respondent’s Record, Volume 10, Tab P 35

[63] Affidavit of Stephen Cretney, Respondent’s Record, Volume 1, Tab A, pp. 31, 37-42, paras. 50, 59-65 

[64] Affidavit of Stephen Cretney, Respondent’s Record, Volume 1, Tab A, pp. 16-22, paras. 28-33

[65] Affidavit of Sanford Katz, Respondent’s Record, Volume 4, Tab H, pp. 1093-1094, 1099, paras. 46-47, 60

[66] Affidavit of Sanford Katz, Respondent’s Record, Volume 4, Tab H, pp 1086-1089, 1097-1098, 1241-1269, paras. 31-36, 56-7, Exhibits 8, 9 

[67] Affidavit of Sanford Katz, Respondent’s Record, Volume 4, Tab H, pp. 1093-1094, paras. 46-47

[68] With respect to the Netherlands, it is important to note that Dutch same-sex marriages have no effect outside domestic law, according to the legislation. Affidavit of Bea Verschraegen, Respondent’s Record, Volume 3, Tab G, p. 107, para. 228 (Note: In EGALE v. Canada (2001), 88 C.R.R. (2d) 322 (B.C.S.C.) at 361, para. 188, Pitfield J. mistakenly refers to Germany as a country that has adopted the Netherlands model.)

[69]  See Chart in Canada’s Compendium detailing the various models that different nations have introduced to formally recognize same-sex relationships and effect certain benefits and obligations.

[70] Affidavit of Bea Verschraegen, Respondent’s Record, Volume 3, Tab G, pp. 823-864, 883, paras. 109-193, 233

[71] Affidavit of Bea Verschraegen, Respondent’s Record, Volume 3, Tab G, pp. 821, 823, paras. 105, 108

[72] Affidavit of Bea Verschraegen, Respondent’s Record, Volume 3, Tab G, pp. 822-864, paras. 108-193, 230-233

[73] Affidavit of Bea Verschraegen, Respondent’s Record, Volume 3, Tab G, pp. 828-830, paras. 121, 124

[74] Halpern, at 416, para. 143, per Laforme J.

[75] Appeal Book, Tab 16, Case Management Meeting Minutes, January 25, 2001, p. 259

[76] Appeal Book, Tab 19, Summary of Case Management Results for Divisional Court Panel dated October 2, 2001, p. 280

[77] Appeal Book, Tab 19, Summary of Case Management Results for Divisional Court Panel dated October 2, 2001, p. 280

[78] Housen v. Nikolaisen, 2002 SCC 33 8-9

[79] RJR MacDonald Inc. v. Canada (Attorney General), [1995] 3 S.C.R. 199 at 334-5, para. 141, per McLachlin J. (as she then was)

[80] Halpern, at 420-433, paras. 158-210, per LaForme J.

[81] Halpern, at 327, para. 1, per Smith, A.C.J.S.C.

[82] Halpern, at 345, para. 38, per Blair R.S.J.

[83] Halpern, at 421, para. 162, per LaForme, J.

[84] Halpern, at 421, para. 164, per LaForme J.

[85] Halpern, at 423, para. 168, per LaForme, J.

[86] Halpern, at 428, para. 188, per LaForme, J.

[87] Halpern, at 430, para. 199, per LaForme, J.

[88] Halpern, at 432, para. 207, per LaForme, J.

[89] Law v. Canada, [1999] 1 S.C.R. 497 at 519, para. 28; see also:  Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 182 

[90] While this finding was accurate, it was incorrect to implicitly conclude from this that it was Canada's position that such an approach precluded the Court from adopting a purposive approach to the s. 15(1) analysis. 

[91] Lovelace v. Ontario, [2000] 1 S.C.R. 950 at 984, para. 54.  See also:  Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83 ¶ 36, per Bastarache, J.

[92] Law v. Canada, [1999] 1 S.C.R. 497 at 509, para. 6

[93] Law v. Canada, [1999] 1 S.C.R. 497 at 531, para. 57

[94] Law v. Canada, [1999] 1 S.C.R. 497 at 509, para. 6; see also Lavoie v. Canada, 2002 SCC 23 38; Gosselin v. Quebec (Attorney General), 2002 SCC 84 29

[95] Law v. Canada, [1999] 1 S.C.R. 497 at 531-2, para. 57

[96] Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83 36–40

[97] See:  Halpern, at 420, para. 157, per LaForme, J.  This error is addressed in more detail in this factum at paras. 77 to 83, above.

[98] See:  Halpern, at 421, para. 162, per LaForme, J.  This error is addressed in more detail in this factum at paras. 59 to 61, below.

[99] See in particular Halpern, at 427, 428, paras. 182, 188, per LaForme, J.   This error is also addressed in more detail in the next section of this factum, at paras. 68-73, below.

[100] Halpern, at 425, para. 177, per LaForme, J.

[101] Law v. Canada, [1999] 1 S.C.R. 497 at 532-533, paras. 59–60; Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83 37–38; Gosselin v. Quebec (Attorney General), 2002 SCC 84 25, 66

[102] Lavoie v. Canada, 2002 SCC 23 46

[103] Halpern, at 428, para. 188, per LaForme, J.

[104] See: Quilter et al v. Attorney General (New Zealand), [1998] 1 N.Z.L.R. 523 (C.A.) at 560-563 (Following the dismissal of their appeal, some of the appellants forwarded a communication to the United Nations Human Rights Committee seeking a statement that New Zealand was in breach of its human rights obligations under the International Covenant on Civil and Political Rights.  The Committee held that the Covenant only recognizes unions between a man and a woman as marriages and that the mere refusal to provide for marriages between same-sex couples does not violate the Covenant. Communication No. 902/1999, Joslin et al. v. New Zealand (views adopted 30 July 2002, 75th Sess.), Report of the Human Rights Committee, 75th Sess., U.N. Doc. No. CCPR/C/75/D/902/1999 (Jurisprudence)).  See also the decision of the European Court of Human Rights in Rees v. United Kingdom, [1986] 9 E.H.R.R. 56 at 68, paras. 49–50

[105] Halpern, at 430-1, 432, paras. 199, 207, per LaForme, J.

[106] Haig v. Canada, [1993] 2 S.C.R. 995 at 1041-1042

[107] Dunmore v. Ontario (Attorney General), 2001 SCC 94 28

[108] Halpern, at 428, paras. 187-188, per LaForme, J.

[109] Halpern, at 420, para. 157, per LaForme, J.

[110] Halpern, at 428, para. 188, per LaForme, J.

[111] Halpern, at 431, para. 202, per LaForme J.

[112] Affidavit of John Witte Jr., Respondent’s Record, Volume 1, Tab B, pp. 174-202, paras.15-27, 42-57 and 63-69

[113] Halpern, at 356, 360-361, paras. 64-66, 80, per Blair R.S.J.

[114] Halpern, at 358, para. 71, per Blair R.S.J.

[115] Halpern, at 361, para. 81, per Blair R.S.J.

[116] Halpern, at 356, para. 65, per Blair R.S.J.

[117] Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83 ¶ 39

[118] See discussion in this factum at paras. 96-108, above.

[119] Halpern, at 423, para. 172, per LaForme, J.

[120] R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295 at 344, per Dickson J. (as he then was)

[121] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.),1982, c. 11, section 15

[122] Gosselin v. Quebec (Attorney General), 2002 SCC 84 22

[123] Law v. Canada, [1999] 1 S.C.R. 497 at 549-552, para. 88

[124] Egan v. Canada, [1995] 2 S.C.R. 513 at 583, para. 127, per Cory J.  See also 596-7, para. 166

[125] M. v. H., [1999] 2 S.C.R. 3 at 28, para. 8

[126] Egan v. Canada, [1995] 2 SCR 513 at 536, para. 21, per LaForest J.

[127] Egan v. Canada, [1995] 2 S.C.R 513 at 538-9, para. 26, per LaForest J.

[128] Layland v. Ontario (Minister of Consumer & Commercial Relations) (1993), 14 O.R. (3d) 658 (Gen. Div.), leave to appeal to the Court of Appeal granted, but not pursued.

[129] EGALE v. Canada (2001), 88 C.R.R. (2d) 322 (B.C.S.C.)

[130] Hendricks v. Québec (Attorney General), [2002] J.Q. No. 3816 (S.C.)

[131] Law v. Canada, [1999] 1 S.C.R. 497 at 550-2, para. 88; Lovelace v. Ontario, [2000] 1 S.C.R. 950 at 984-5, para. 54; see also: R. v. Turpin, [1989] 1 S.C.R. 1296 at 1331-2

[132] See Part III of this Factum, Section A, The Broad Context

[133] Hyde v. Hyde and Woodmansee (1866), L.R. 1 P&D 130 at 133

[134] See: Weatherall v. Canada [1993] 2 S.C.R. 872 at 874; R. v. Hess; R. v. Nguyen [1990] 2 S.C.R. 906 at 929–932; Law v. Canada, [1999] 1 S.C.R. 497 at 531-2, para. 57

[135] Hyde v. Hyde and Woodmansee (1866), L.R. 1 P&D 130 at 133; Affidavit of Katherine Young, Respondent’s Record, Volume 2A, Tab F, pp. 685-687, paras. 1–7; Affidavit of Stephen Cretney, Respondent’s Record, Volume 1, Tab A, pp. 7-16, paras. 12-27; Affidavit of John Witte, Jr., Respondent’s Record, Volume 1, Tab B, pp. 169, 173-191, paras. 4, 12–46; Affidavit of Robert Stainton, Respondent’s Record, Volume 5, Tab K, pp. 1483-1484, 1504, paras. 19–20, 60

[136]  Affidavit of John Witte Jr., Respondent’s Record, Volume 1, Tab B, pp. 174-202, paras.15-27, 42-57, 63-69

[137] Affidavit of John Witte Jr., Respondent’s Record, Volume 1, Tab B, pp. 173, 174-178, paras. 12, 15–21

[138] Affidavit of John Witte Jr., Respondent’s Record, Volume 1, Tab B, p. 178, para. 22

[139] Affidavit of John Witte Jr., Respondent’s Record, Volume 1, Tab B, pp. 173, 179-191, paras. 12, 23–46; Affidavit of Stephen Cretney, Respondent’s Record, Volume 1, Tab A, pp. 7, 12-13, 15-16, paras. 12, 20–22, 25–26

[140] Affidavit of John Witte Jr., Respondent’s Record, Volume 1, Tab B, pp. 195-196, para. 56; Affidavit of Sanford Katz, Respondent’s Record, Volume 4, Tab H, pp. 7-8, paras. 18-21, (American law); Affidavit of Stephen Cretney, Respondent’s Record, Volume 1, Tab A, pp. 7-16, paras. 12–26, (U.K. law); Parliamentary Debates on the subject of the Confederation of the British North American Provinces, 3rd session, 8th Parl., Respondent’s Record, Volume 6, Tab O 4, pp. 1830, 1836-1840 (see for example the comments of Hon. Sir. E.P. Tache and Sol.Gen. Langevin). 

[141] Affidavit of Katherine Young, Respondent’s Record, Volume 2A, Tab F, pp. 699-723, paras. 26 – 71

[142] Affidavit of John Witte Jr., Respondent’s Record, Volume 1, Tab B, pp. 196-199, paras. 57–62; Affidavit of Bea Verschraegen, Respondent’s Record, Volume 3, Tab G, p. 883, paras. 230-233 (the exception referred to is the Netherlands which, as a result of its particular culture and legal developments, is an anomaly)

[143] Affidavit of Robert Stainton, Respondent’s Record, Volume 5, Tab K, pp. 1483-1484, 1502-1505, paras. 19-20, 54–64

[144] By analogy, see: Vancouver Society of Immigrant Women v. Canada, [1999] 1 S.C.R. 10 at 139-140, para. 208

[145] Miron v. Trudel, [1995] 2 S.C.R. 418 at 500-501, para 158-9

[146] Modernization of Benefits and Obligations Act, S.C. 2000, c. 12, Respondent’s Record, Volume 10, Tab P 32

[147] See Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83 ¶ 6

[148] M. v. H., [1999] 2 S.C.R. 3 at 87, paras. 145-7

[149] See, by analogy, Egan v. Canada, [1995] 2 S.C.R. 513 at 592, 614, paras. 155, 204, where the Court held that the existence of relevant provincial legislation could not remedy an unconstitutional gap in federal legislation.

[150] Law v. Canada, [1999] 1 S.C.R. 497 at 546, para. 84

[151] Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83 ¶ 39

[152] Law v. Canada, [1999] 1 S.C.R. 497 at 546-547, para. 86.  See also Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at 168

[153] Law v. Canada, [1999] 1 S.C.R. 497 at 528, para. 48

[154] Law v. Canada, [1999] 1 S.C.R. 497 at 530, para. 53

[155] Law v. Canada, [1999] 1 S.C.R. 497 at 532-4, paras. 59-61

[156] Law v. Canada, [1999] 1 S.C.R. 497 at 534, para. 62

[157] Law v. Canada, [1999] 1 S.C.R. 497 at 532-533, paras. 59-60

[158] In fact, many of the Halpern et al couples already describe themselves as “married” and as having been through a type of “marriage ceremony” that has granted them societal recognition and acceptance.

[159] EGALE v. Canada (2001), 88 C.R.R. (2d) 322 (B.C.S.C.) at 365, para. 212

[160] Law v. Canada, [1999] 1 S.C.R. 497 at 536, para. 67; see also: Winko v. British Columbia, [1999] 2 S.C.R. 625 at 677-680, 685-6, paras. 80-86, 97

[161] Law v. Canada, [1999] 1 S.C.R. 497 at 535, para. 64

[162]Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83 41–43

[163] Law v. Canada, [1999] 1 S.C.R. 497 at 537-538, paras. 69-70; EGALE v. Canada (2001), 88 C.R.R. (2d) 322 (B.C.S.C.) at 365, para. 212

[164] Law v. Canada, [1999] 1 S.C.R. 497 at 538, para. 70

[165] Law v. Canada, [1999] 1 S.C.R. 497 at 555-561, paras. 95–106; see also Granovsky v. Canada, [2000] 1 S.C.R. 703 at 736, 739-40, paras. 61, 69; Lovelace, [2000] 1 S.C.R. 950 at 994-5, para. 75; and Re Therrien [2001], 2 S.C.R. 3, at 87, para. 132

[166] Affidavit of Edward Shorter, Respondent’s Record, Volume 2, Tab C-1, pp. 409, 442, paras. 35-36, 98

[167] Law v. Canada, [1999] 1 S.C.R. 497 at 558, para. 101

[168] EGALE v. Canada (2001), 88 C.R.R. (2d) 322 (B.C.S.C.) at 341-2, para. 93-97

[169] EGALE v. Canada (2001), 88 C.R.R. (2d) 322 (B.C.S.C.) at 363, paras. 204-205

[170] Egan v. Canada, [1995] 2 S.C.R. 513 at 539, para. 28

[171] Modernization of Benefits and Obligations Act, Respondent’s Record, Volume 10, Tab P 32

[172] Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83 49

[173] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (U.K.), 1982, c. 11, section 1

[174] R. v. Oakes, [1986] 1 S.C.R. 103; R. v. Robinson, [1996] 1 S.C.R. 683

[175] Halpern, at 437, 439, paras. 227-228, 232, per LaForme J.; and see 362, para. 85-87, per Blair R.S.J.

[176] Halpern, at 342, paras. 25-28, per Blair R.S.J. and at 404-405, paras. 93-97, per LaForme J.

[177] Modernization of Benefits and Obligations Act, S.C. 2000, c. 12, s. 1.1, Respondent’s Record, Volume 10, Tab P 32, pp. 3257

[178] Federal Law-Civil Law Harmonization Act, No. 1, S.C. 2001, c. 4, Respondent’s Record, Supplementary Volume 1, Tab E 6

[179] Canada Evidence Act, R.S.C 1985, c.C-5, s. 4;  Citizenship Act, R.S.C. 1985, c. C-29, s. 11(2); Marriage Act, R.S.O. 1990, c.M-3, s. 24(3) and R.R.O. Reg. 738, Form 3, Respondent’s Record, Volume 11, Tabs. Q 49, Q 50, pp. 3755, 3762; An Act to amend certain statutes because of the Supreme Court of Canada decision in M. v. H. S.O.1999, c. 6, Respondent’s Record, Volume 12, Tab Q 60; Code civil du Québec/ Civil Code of Quebec, L.Q./ S.Q. 1991, c. 64, Article 365, Respondent’s Record, Volume 13, Tab R 12, p. 4657; Marriage Amendment Act, 2000, S.A. 2000, c. 3, s. 1 (c.1), Respondent’s Record, Volume 16, Tab T 18

[180] R. v. Therens, [1985] 1 S.C.R. 613 at 645

[181] R. v. Robinson, [1996] 1 S.C.R. 683 at 708-9, para. 42; and see R. v. Swain, [1991] 1 S.C.R. 933 at 979, para. 52

[182] Thomson Newspapers, [1998] 1 S.C.R. 877 at 939-946, paras. 87-95

[183] Thomson Newspapers, [1998] 1 S.C.R. 877 at 939, para. 88; see also EGALE v. Canada  (2001), 88 C.R.R. (2d) 322 (B.C.S.C.) at 364, para. 209

[184] M. v. H., [1999] 2 S.C.R. 3 at 59-62, paras. 78-80; Thomson Newspapers, [1998] 1 S.C.R. 877 at 941-942, para. 88 (quoting McLachlin J., as she then was, in RJR-Macdonald v. Canada (A.G.), [1995] 3 S.C.R. 199)

[185] See Part III of this factum, Section A, the Broad Context.

[186] EGALE v. Canada (2001), 88 C.R.R. (2d) 322 (B.C.S.C.) at 363, paras. 204-205. See also Weatherall v. Canada [1993] 2 S.C.R. 872 at 874; R. v. Hess; R. v. Nguyen [1990] 2 S.C.R. 906 at 929–932

[187] W.H. McConnell, Commentary on the British North America Act (Toronto: MacMillan, 1977) at 232-235, 268-275; Bill S-2, An Act to amend and consolidate the laws prohibiting marriage between related persons,1st sess., 33rd Parl. (Sixth Proceedings, 30 October 1985, Standing Senate Committee on Legal and Constitutional Affairs), Respondent’s Record, Volume 7, Tab P 16; Bill S-14, An Act respecting the laws prohibiting marriage between related persons, 2nd sess., 34th Parl. (Minutes of Proceedings and Evidence of Legislative Committee 24 October 1990, 8 November 1990, House of Commons), Respondent’s Record, Volume 7, Tab P 18; Bill C-23, An Act to modernize the Statutes of Canada in relation to benefits and obligations, 2nd sess., 36th Parl. (first reading, 11 February 2000, House of Commons), Respondent’s Record, Volume 7, Tab P 21; Bill C-23, An Act to modernize the Statutes of Canada in relation to benefits and obligations, House of Commons Debates, 2nd sess., 36th Parl., vol. 136 at 3581 – 3561, 3765 – 3820, Respondent’s Record, Volume 7, Tab P 22

[188] Parliamentary Motion, House of Commons Debates, 1st sess., 36th Parl., vol. 135 at 15960-15993, 16034-16036, and 16068-16069 (8 June 1999), Respondent’s Record, Volume 7, Tab P 20

[189]Bill C-23, An Act to modernize the Statutes of Canada in relation to benefits and obligations, 2nd sess., 36th Parl. (first reading, 11 February 2000, House of Commons), Respondent’s Record, Volume 7, Tab P 21; Bill C-23, An Act to modernize the Statutes of Canada in relation to benefits and obligations, House of Commons Debates, 2nd sess., 36th Parl., vol. 136 at 3581 – 3561, 3765 – 3820, Respondent’s Record, Volume 7, Tab P 22; Bill C-23, An Act to modernize the Statutes of Canada in relation to benefits and obligations, 2nd sess., 36th Parl. (Minutes and Evidence, 29 February 2000 – 29 March 2000, Standing Committee on Justice and Human Rights), Respondent’s Record, Volume 8, Tab P 23

[190] R. v. Swain, [1991] 1 S.C.R. 933 at 981, per Lamer C.J.

[191] Halpern, at 439-40, para. 235, per LaForme J. And see 357-8, paras. 69-70, per Blair R.S.J.

[192] Halpern, at 439-440, para. 235, per LaForme J.

[193] EGALE v. Canada (2001), 88 C.R.R. (2d) 322 (B.C.S.C.) at 363-4, para. 207

[194] Halpern, at 440, 441 paras. 238, 242

[195] Affidavit of John Witte Jr., Respondent’s Record, Volume 1, Tab B, pp. 168-169, 173, paras. 1, 3, 4, 12

[196] Egan v. Canada, [1995] 2 S.C.R. 513 at 536, paras. 21-22, per LaForest J.

[197] Nova Scotia (Attorney General) v. Walsh, 2002 SCC 83 58-91

[198] Halpern, at 442-443, paras. 248-250, per LaForme J.

[199] Lavoie v. Canada, 2002 SCC 23 59

[200] R. v. Oakes, [1986] 1 S.C.R. 103 at 139

[201] EGALE v. Canada (2001), 88 C.R.R. (2d) 322 (B.C.S.C.) at 363, paras. 205-207

[202] EGALE v. Canada (2001), 88 C.R.R. (2d) 322 (B.C.S.C.) at 364, para. 211

[203] Report On Recognition of Spousal and Family Status, British Columbia Law Institute, November, 1998 in which a Domestic Partnership Act is proposed

[204] Law Reform (2000) Act, S.N.S. 2000, c. 29, Respondent’s Record, Supplementary Volume 2, Tab J 5

[205] See for example Vital Statistics Act, N.S.R.S. 1989, ch. 494, part 2 (2001)

[206] e.g. rules of nullity regarding consummation.

[207] Halpern, at 445, para. 261, per LaForme J.

[208] Halpern, at 445, para. 261, per LaForme J.

[209] EGALE v. Canada (2001), 88 C.R.R. (2d) 322 (B.C.S.C.) at 365, para. 214

[210] Affidavit of Katherine Young, Respondent’s Record, Volume 2A, Tab F, pp. 737-744, paras. 102-115; Affidavit of Edward Shorter, Respondent’s Record, Volume 2, Tab C-1, pp. 457-459, paras. 125-8; Affidavit of Douglas Allen, Respondent’s Record, Volume 4, Tab I, pp. 1294-1297, paras. 58-67

[211] Affidavit of Sanford Katz, Respondent’s Record, Volume 4, Tab H, pp. 1093-1094, paras 46-48

[212] Affidavit of Stephen Cretney, Respondent’s Record, Volume 1, Tab A, pp. 16-20, paras. 28-32

[213] Egan v. Canada, [1995] 2 S.C.R. 513 at 536, para. 21; EGALE v. Canada (2001), 88 C.R.R. (2d) 322 (B.C.S.C.) at 364, para. 208

[214] Affidavit of Bea Verschraegen, Respondent’s Record, Volume 3, Tab G, p. 882, para. 227

[215] See Chart in Canada’s Compendium encapsulating the various models that different nations have introduced to formally recognize same-sex relationships and the benefits and obligations included and excluded by that recognition.

[216] Affidavit of Bea Verschraegen, Respondent’s Record, Volume 3, Tab G, p. 883, para. 233

[217] Affidavit of Bea Verschraegen, Respondent’s Record, Volume 3, Tab G, pp. 822-864, paras. 108-193

[218] Affidavit of Bea Verschraegen, Respondent’s Record, Volume 3, Tab G, p. 830, para. 124

[219] Quilter et. al. v. The Attorney-General of New Zealand, [1998] 1 N.Z.L R. 523 (C.A.) at 563 (See dismissal of the Communication made by some of the appellants in Quilter to the U.N. Human Rights Committee at Communication No. 902/1999, Joslin et al. v. New Zealand (views adopted 30 July 2002, 75th Sess.), Report of the Human Rights Committee, 75th Sess., U.N. Doc. No. CCPR/C/75/D/902/1999 (Jurisprudence)). 

[220] M. v. H., [1999] 2 S.C.R. 3 at 59-62, paras.78-80; Thomson Newspapers Co. v. Canada (Attorney General), [1998] 1 S.C.R. 877 at 939-42, paras. 87-88.  And see Watkins v. Olafson, [1989] 2 S.C.R. 750 at 760-1, where this Court stated that major revisions of legal rules with complex or uncertain ramifications are best left to the legislatures.

[221] EGALE v. Canada (2001), 88 C.R.R. (2d) 322 (B.C.S.C.) at 341-342, paras. 94-97

[222] Halpern, at 444, paras. 253-256, per LaForme J.