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"The argument of the AGC that the very essence of marriage is its opposite-sex “nature” and that this reflects a “universal norm” is expressly discriminatory. It is inconsistent with equality principles to defend discriminatory conduct with an expressly discriminatory justification."
Canadian Human Rights Commission

 

 

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The thing to accomplish was, under the guise of giving equal accommodation for whites and blacks, to compel the latter to keep to themselves while travelling in railroad passenger coaches. No one would be so wanting in candor as to assert the contrary. The fundamental objection, therefore, to the statute is that it interferes with the personal freedom of citizens."
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"The Commission respectfully submits that the reliance by the AGC, the government of all Canadians, on these arguments, which have been the subject of judicial disapproval since at least the dissent in Plessy in 1896, undermines the dignity of all Canadians."
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"The assertion by the AGC that there is a need to protect and promote opposite-sex marriage, presumably from incursion by “other” family forms is expressly discriminatory and demeaning to all Canadians."
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"The AGC’s argument is based on excluding same-sex couples from marriage without offering them any corresponding “nomenclature” or “descriptor” which delivers both the tangible and intangible benefits of the word marriage."
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"It is easy to say that everyone who is just like "us" is entitled to equality. Everyone finds it more difficult to say that those who are "different" from us in some way should have the same equality rights that we enjoy. Yet so soon as we say any enumerated or analogous group is less deserving and unworthy of equal protection and benefit of the law all minorities and all of Canadian society are demeaned. It is so deceptively simple and so devastatingly injurious to say that those who are handicapped or of a different race, or religion, or colour or sexual orientation are less worthy. Yet, if any enumerated or analogous group is denied the equality provided by s. 15(1) then the equality of every other minority group is threatened."
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  Legal - Ontario

April 16, 2003

Government undermines Canadian dignity
The Canadian Human Rights Commission

Extracted from the factum by CHRC:
Leslie A. Reaume
Andrea Wright

"A statute which implies merely a legal distinction between the white and colored races - a distinction which is founded in the color of the two races, and which must always exist so long as white men are distinguished from the other race by color - has no tendency to destroy the legal equality of the two races... "
Plessy v. Ferguson, 163 U.S. 537 (1896) at 543.

“the opposite sex nature of marriage does not imply that the human dignity of those in other relationships is diminished”
The Attorney General of Canada, Factum, at para. 6 (2003)


The Canadian Human Rights Commission (“Commission”) was granted intervener status as a friend of the court in the appeal and cross-appeals on March 4, 2003 by Chief Justice McMurtry. The Commission has a long history of promoting equality rights and combating discrimination based on a number of prohibited grounds including: race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offense for which a pardon has been granted.

The failure to issue marriage licences for civil marriages and to register the marriages solemnized by the MCCT is clearly a violation of section 15(1) [equality rights] of the Charter which cannot be saved by section 1 [see details below].

The exclusion of same-sex couples from marriage, and the justifications offered in defence of that exclusion, perpetuate discrimination against same-sex couples and undermine the dignity of the claimants and ultimately all Canadians. Equality demands that same-sex couples be free marry and to have their marriages registered with the state. The Commission agrees with the submissions of the respondents and seeks to add the following perspectives to the appeal and cross-appeals.

Remove formal barrier to achieve equality

The [couples] seek the same access to marriage that their heterosexual counterparts enjoy. The Attorney General of Canada (“AGC”) asserts that requiring identical access to marriage is formalistic and regressive. They plead, for example that treating same-sex couples differently from opposite-sex couples is what would achieve substantive equality, since same-sex couples and opposite-sex couples are inherently different. This assertion rests on the validity of the AGC’s position that same-sex couples are “different” in a way that is rationally connected to maintaining the formal barrier to marriage.

While the argument makes reference to difference, there is no elaboration of that position or an attempt to define the differences which make same-sex couples incompatible with civil marriage. There is also no exploration of the needs of same-sex couples and their families which the AGC asserts can be met through an “alternative” regime of statutory benefits. The argument of the AGC represents an inversion of substantive equality theory.

While the Supreme Court has moved from formal equality to substantive equality this does not suggest that there are no longer circumstances where discrimination manifests itself as a formal distinction where substantive equality can be achieved by identical treatment. The Supreme Court has simply developed its equality analysis to include consideration of the impact of a law where, for example, identical treatment will not satisfy the demands of substantive equality.

In other words, differential treatment may sometimes be necessary to achieve substantive equality in those cases where the removal of formal barriers alone will not achieve this important goal. The argument of the AGC inverts this analysis by suggesting differential treatment for exactly the opposite purpose: to reinforce a formal barrier to equality. The Commission urges the Court to reject this analysis which is completely inconsistent with the purpose of section 15(1) and the development of substantive equality principles in the human rights context.

The barrier should be removed because the argument of the AGC fails to define any “difference” between opposite-sex couples and same-sex couples which is rationally connected to maintaining a formal barrier against same-sex marriage.

Giving same-sex couples the same access to a civil licencing and registration scheme as opposite sex couples enjoy will eradicate an important formal legal distinction between them and contribute to the movement toward greater substantive equality for gay, lesbian and bisexual citizens.

Equality protections in the Charter

SELECT to read the complete Canadian Charter of Rights and FreedomsThe Commission submits that the focus of the section 15(1) analysis should be on the contextual experience of gay, lesbian and bisexual Canadians and that any concentration on ‘the context of marriage’ and the defence of marriage as an “inherently” heterosexual institution, as in the AGC’s s. 15 submissions, creates the potential for a blurring of the analytical distinctions between section 15(1) and section 1. Such submissions also tend to efface the experiences of gay, lesbian and bisexual Canadians at the stage in the section 15(1) analysis where the focus should in fact be on the claimants and not the defence of the impugned rule.

In Law at para. 51, the Court further affirmed that the general purpose of section 15(1):

is to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally capable and equally deserving of concern, respect and consideration.

Putting back the context that the AGC ignored

In making this submission, the Commission focuses on the contextual experience of gay, lesbian and bisexual Canadians and the effect of the common law bar on their inability to obtain marriage licences and to have their marriages registered. The focus by the AGC on the context of marriage threatens to obscure the effect of the exclusion on the claimants. The focus on the defence of marriage threatens to undermine the connection between the denial of licences and registration from the myriad indignities that the claimants have suffered in their daily lives which have required redress through litigation under the Charter and other human rights instruments. That equality litigation has involved some of the most basic elements of civic life:

  • recognition of sexual orientation as a prohibited ground of discrimination in provincial and federal human rights legislation;
  • healthcare benefits for their partners and children;
  • bereavement leave;
  • hate messages on the internet and through telecommunications;
  • civic proclamations;
  • photocopying services;
  • advertisements exposing them to hatred and ridicule; harassment at school;
  • losing their jobs; pension benefits;
  • spousal support;
  • artificial insemination services;
  • adoption;
  • discharge from the Canadian Armed Forces;
  • spousal exemptions from fees in vehicle transfers;
  • visiting privileges at a correctional facility;
  • processing of name changes.

Canada's Legislative Commitment to Equality

SELECT for external link to the Canadian Human Rights ActThe Government of Canada’s commitment to equality for all Canadian citizens is reflected in the language of section 15(1) of the Charter and also in the purpose of the Canadian Human Rights Act (“Act”). The Act does not apply to the issuance of marriage licences and the registration of marriages in the Province of Ontario. However, the Act does reflect Parliament’s commitment to eradicating discrimination on the prohibited grounds engaged by the appeal and cross-appeals, namely, sex, sexual orientation, marital status, family status and religion.

The Act forms part of the context in which the Canadian government recognized and attempted to remedy historic disadvantage for those individuals now seeking access to marriage. The Act, therefore forms part of the context within which the arguments of the parties can legitimately be assessed in this case. The Act also forms part of the context for assessing objectively, the subjective view of the respondents that their dignity is infringed by their exclusion from marriage. The Act represents an admission that the dignity of same-sex couples has historically been undermined through discriminatory practices which require an effort by the government to remedy. It is objectively rational, therefore, for gay, lesbian and bisexual citizens, to experience a loss of dignity in the failure of that same government to recognize their right to equal access to marriage.

The existence of this legislative commitment to equality, is at variance with the argument of the AGC that marriage, as a “fundamental social institution” built upon the bedrock of opposite-sex procreation, cannot be transformed by the Charter. In fact, the purpose of all human rights legislation, most of which predates the Charter in Canada, is to transform relations between individuals, and between individuals and their government, to fulfill the state’s responsibility to eliminate discrimination. To suggest that these principles apply to all fundamental social institutions, except marriage, is to deny the promise of equality and to expressly violate Canada’s commitment to the values which underlie both the Charter and the Canadian Human Rights Act.

Reject the AGC's reliance on "normality"

The assertion that opposite-sex marriage is and should remain the “norm”and that the needs of same-sex couples can be met through alternatives to marriage pervades the argument of the AGC. Marriage is, in the words of the AGC, simply “nomenclature” a “descriptor”. The real inequality, they claim, is in the denial of statutory benefits and obligations to same-sex couples. This inequality can apparently be remedied, not through access to marriage, but through individual challenges to benefits legislation.

The arguments of the AGC have been described as a version of the “separate but equal” doctrine. The Commission respectfully submits that the argument was actually better characterized by LaForme J. in the decision under appeal as a rule “intended to actually exclude marriage between same-sex couples”.

The federal government would never conceive of legislating against the marriage of couples who identify with a different ethnic or cultural history nor would the government preclude disabled persons from marrying ablebodied persons, offering them a separate regime of benefits in exchange. Similarly, the federal government would never withhold from women the ability to call themselves “persons”, in favour of a statutory regime of benefits that are generally associated with personhood.

The AGC relies on the “natural” distinctions between same-sex couples and opposite-sex couples and pleads for separation based on those distinctions. The respondents expose that the rationale behind these arguments is not to reinforce the equality and dignity of both opposite-sex and same-sex couples, but to perpetuate the historic exclusion of samesex couples from marriage.

Equality principles benefit all Canadians

The Interfaith Coalition represents members of several religious faith communities in Canada. Members of the Coalition are concerned that their communities, which have been historically marked by racism and religious intolerance, will be further alien\\\ated from Canadian society should the court allow same-sex couples to marry. Their concerns arise out of their strongly held religious beliefs which are, in their view, irreconcilable with same-sex marriage.

The interests of the Coalition form part of a broad public dialogue on same-sex marriage, and their right to express those views is confirmed by their participation in this case as an intervener. However the rights of the members of the coalition are not engaged by this case. There is no claim against the Coalition, either explicit or implicit, requiring them to defend their religious beliefs against the requirement to conduct same-sex marriages.

The respondents are seeking access to a civil institution, not religious marriage. Both the applicant couples and the MCCT are seeking to compel the provincial authorities to provide access to the civil recognition of their marriages. Neither group is seeking to compel other religious organizations to endorse their marriages or to conduct same-sex marriages within their own organizations.

The failure to rigorously apply the principles of equality in this case threatens all equality seeking communities and ultimately all Canadians. The Coalition members themselves would be more vulnerable to discrimination and less equipped to assert their right to freedom from discrimination in a context where equality principles are applied inconsistently.

Read the complete CHRC factum

Read other factums related to the April 2003 Ontario Appeal


Summaries from the hearings in Ontario divisional court:

Day One - Nov. 5, 2001

Day Two - Nov. 6, 2001

Day Three - Nov. 7, 2001

Day Four - Nov. 8, 2001

Day Five - Nov. 9, 2001

The Decision - July 12, 2002


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