Halpern v. Can. (A.G.), (2003) 172 O.A.C. 276 (CA)

• Judge: McMurtry, C.J.O., MacPherson and Gillese, JJ.A.
• Court: Court of Appeal (Ontario)
• Case Date: June 10, 2003
• Jurisdiction: Ontario
• Citations: (2003), 172 O.A.C. 276 (CA)

Halpern v. Can. (A.G.) (2003), 172 O.A.C. 276 (CA)

MLB headnote and full text

Temp. Cite: [2003] O.A.C. TBEd. JN.029

Hedy Halpern and Colleen Rogers, Michael Leshner and Michael Stark, Aloysius Pittman and Thomas Allworth, Dawn Onishenko and Julie Erbland, Carolyn Rowe and Carolyn Moffatt, Barbara McDowall and Gail Donnelly, Alison Kemper and Joyce Barnett (applicants/respondents/appellants by way of cross-appeal) v. Attorney General of Canada, the Attorney General of Ontario and Novina Wong, the Clerk of the City of Toronto (respondents/appellant/respondent by way of cross-appeal) and Egale Canada Inc., Metropolitan Community Church of Toronto, The Interfaith Coalition on Marriage and Family, The Association for Marriage and the Family in Ontario, Canadian Coalition of Liberal Rabbis for Same-Sex Marriage and Canadian Human Rights Commission (intervenors)

Metropolitan Community Church of Toronto (applicant/respondent/appellant by way of cross-appeal) v. Attorney General of Canada and the Attorney General of Ontario (respondents/appellant/respondent by way of cross-appeal) and Hedy Halpern and Colleen Rogers, Michael Leshner and Michael Stark, Aloysius Pittman and Thomas Allworth, Dawn Onishenko and Julie Erbland, Carolyn Rowe and Carolyn Moffatt, Barbara McDowall and Gail Donnelly, Alison Kemper and Joyce Barnett, Egale Canada Inc., The Interfaith Coalition on Marriage and Family, The Association for Marriage and the Family in Ontario, Canadian Coalition of Liberal Rabbis for Same-Sex Marriage and Canadian Human Rights Commission (intervenors)

(C39172; C39174)

Indexed As: Halpern et al. v. Canada (Attorney General) et al.

Ontario Court of Appeal

McMurtry, C.J.O., MacPherson and Gillese, JJ.A.

June 10, 2003.

Summary:

These proceedings involved two applications. The first was by eight same sex couples who applied for civil marriage licences from the Clerk of the City of Toronto. The clerk neither granted nor did she expressly refuse to issue the licenses, but instead indicated that the applications would be "held in abeyance" while directions from the court were sought. These couples commenced judicial review proceedings (the first application). Approximately six months later, a lesbian couple and a gay couple were married in the Metropolitan Community Church of Toronto, following the publication of banns of marriage, but the Registrar General of Ontario would not register the marriages. The church commenced a second judicial review application. Essentially, the orders sought in both applications would require the Clerk of the City of Toronto to grant marriage licences to gay and lesbian couples and the Registrar General of Ontario to register such marriages solemnized in a church under publication of banns of marriage. In particular, the couples and the church argued that the common law rule that defined marriage as being the union of "one man and one woman to the exclusion of all others" was contrary to the Charter.

The Ontario Divisional Court, in a decision reported 163 O.A.C. 276, held: (a) that there was no statutory impediment to the issuance of marriage licences to same-sex couples who otherwise met the requisite criteria, or to the registration of their church marriages pursuant to the publication of banns of marriage; (b) that there was a common law rule - as the common law presently stood - which was an impediment to same-sex marriages; (c) that the existing common law rule offended the equality rights of gays and lesbians on the basis of sex and sexual orientation contrary to s. 15(1) of the Charter; (d) that the infringement of s. 15(1) could not be justified under s. 1 of the Charter, to the extent that such an analysis might be necessary when dealing with a common law provision; (e) that the existing common law rule did not infringe s. 2(a), s. 2(b) or s. 7 of the Charter; and (f) that the argument to the effect that any change in the word "marriage", as found in the division of powers in s. 91 and s. 92 of the Constitution Act, 1867, required a constitutional amendment, could not succeed.

The Divisional Court was divided as to the appropriate remedy, but the position of Blair, R.S.J., was reflected in the formal judgment of the court. Blair, R.S.J., held that the appropriate remedy was to strike down the common law definition of marriage but afford Parliament and the provincial Legislature an opportunity to resolve the problem before the declaration of invalidity became effective. Should Parliament and the provincial Legislature decline to act within 24 months, Blair, R.S.J., would reformulate the common law rule to be "the lawful and voluntary union of two persons to the exclusion of all others". The Attorney General of Canada appealed on the s. 15(1) issue (i.e., the equality issue). The couples cross-appealed on the question of remedy alone. The couples sought a declaration of unconstitutionality and a reformulation of the definition of marriage, both to take place immediately, plus related personal remedies in the nature of mandamus. The church also cross-appealed on the question of remedy and from the Divisional Court's dismissal of its claim that the current definition of marriage infringed its ss. 2(a) and 15(1) rights as a religious institution.

The Ontario Court of Appeal dismissed the appeal by the Attorney General of Canada. The church's cross-appeal relating to ss. 2(a) and 15(1) of the Charter on the basis of religion was also dismissed. The couples' cross-appeal and the church's cross-appeal on remedy were allowed. The court concluded the following:

(1) the existing common law definition of marriage was "the voluntary union for life of one man and one woman to the exclusion of all others";

(2) the courts had jurisdiction to alter the common law definition of marriage without resorting to constitutional amendment procedures;

(3) the existing common law definition of marriage did not infringe the church's freedom of religion rights under s. 2(a) of the Charter or its equality rights on the basis of religion under s. 15(1) of the Charter;

(4) the existing common law definition of marriage violated the couples' equality rights on the basis of sexual orientation under s. 15(1) of the Charter; and

(5) the violation of the couples' equality rights under s. 15(1) of the Charter could not be justified in a free and democratic society under s. 1 of the Charter.

As a remedy, the court:

(1) declared the existing common law definition of marriage to be invalid to the extent that it referred to "one man and one woman";

(2) reformulated the common law definition of marriage as "the voluntary union for life of two persons to the exclusion of all others";

(3) ordered that the declaration of invalidity and reformulated definition of marriage take effect immediately;

(4) ordered the Clerk of the City of Toronto to issue marriage licenses to the couples; and

(5) ordered the Registrar General of the Province of Ontario to accept for registration the marriage certificates of the gay and lesbian couples who were married by the church under banns of marriage.

Civil Rights - Topic 397

Freedom of conscience and religion - Infringement of - Marriage restrictions (incl. same-sex marriages) - [See both Family Law - Topic 167 ].

Civil Rights - Topic 953

Discrimination - Sexual orientation - Homosexuals (incl. same-sex couples) - [See both Family Law - Topic 167 ].

Civil Rights - Topic 8306.1

Canadian Charter of Rights and Freedoms - General - Common law - [See both Family Law - Topic 167 ].

Civil Rights - Topic 8380.1

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Reading in - [See second Family Law - Topic 167 ].

Common Law - Topic 3224

Variation - Judicial variation - To meet changing circumstances - [See second Family Law - Topic 167 ].

Family Law - Topic 167

Marriage - Prohibited marriages - Same-sex couples - The Ontario Court of Appeal held that (1) there was a common law rule that excluded same-sex marriages (i.e., the common law defined marriage as the union of "one man and one woman to the exclusion of all others"); (2) the existing common law definition of marriage violated the equality rights of same-sex couples on the basis of sexual orientation contrary to s. 15(1) of the Charter; (3) the violation of the couples' equality rights could not be justified under s. 1 of the Charter; (4) the courts had jurisdiction to amend the definition of marriage without resort to a constitutional amendment - to freeze the definition of marriage as it was in 1867, would be contrary to the doctrine of progressive constitutional interpretation - marriage did not have a constitutionally fixed meaning; and (5) the existing common law definition of marriage did not infringe the religious rights of a church which wanted to carry out same sex marriages (Charter, ss. 2(a), 15(1)) - See paragraphs 1 to 142.

Family Law - Topic 167

Marriage - Prohibited marriages - Same-sex couples - The Ontario Court of Appeal held that the common law rule that defined marriage as being the union of "one man and one woman to the exclusion of all others" constituted discrimination on the basis of sexual orientation contrary to s. 15(1) of the Charter - As a remedy, the court declared the existing common law definition of marriage to be invalid to the extent that it referred to "one man and one woman"; reformulated the common law definition of marriage as "the voluntary union for life of two persons to the exclusion of all others"; and ordered that the declaration of invalidity and reformulated definition of marriage take effect immediately - In addition, the court ordered the Clerk of the City of Toronto to issue marriage licenses to the same-sex couples who instituted the constitutional challenge and ordered the Registrar General of the Province of Ontario to accept for registration the marriage certificates of two same-sex couples involved in the constitutional challenge who were married by a church under banns of marriage - See paragraphs 143 to 155.

Family Law - Topic 240

Marriage - Formalities - Licences and registration (incl. publication of banns) - [See both Family Law - Topic 167 ].

Family Law - Topic 1000

Common law or same-sex relationships - General - [See both Family Law - Topic 167 ].

Cases Noticed:

Hyde v. Hyde and Woodmansee (1866), L.R. 1 P.&D. 130 (H.L.), refd to. [para. 1].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 3].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161, refd to. [para. 7].

M. v. H., [1999] 2 S.C.R. 3; 238 N.R. 179; 121 O.A.C. 1, refd to. [para. 7].

British Columbia Government Employees' Union v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; 87 N.R. 241; 71 Nfld. & P.E.I.R. 93; 220 A.P.R. 93, refd to. [para. 29].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81, refd to. [para. 29].

R. v. Salituro, [1991] 3 S.C.R. 654; 131 N.R. 161; 50 O.A.C. 125, refd to. [para. 29].

Hill v. Church of Scientology of Toronto and Manning, [1995] 2 S.C.R. 1130; 184 N.R. 1; 84 O.A.C. 1, refd to. [para. 29].

Housen v. Nikolaisen et al. (2002), 286 N.R. 1; 219 Sask.R. 1; 272 W.A.C. 1 (S.C.C.), refd to. [para. 30].

Hendricks v. Quebec (Attorney General), [2002] J.Q. No. 3816 (S.C.), refd to. [para. 32].

EGALE Canada Inc. et al. v. Canada (Attorney General) et al. (2003), 182 B.C.A.C. 35; 300 W.A.C. 35 (C.A.), refd to. [para. 33].

Corbett v. Corbett, [1970] 2 All E.R. 33 (P.D.A.), refd to. [para. 36].

Iantsis v. Papatheodorou, [1971] 1 O.R. 245 (C.A.), refd to. [para. 37].

Edwards v. Canada (Attorney General), [1930] A.C. 124 (P.C.), refd to. [para. 42].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291, refd to. [para. 42].

Alberta (Attorney General) v. Canada (Attorney General), [1947] A.C. 503 (P.C.), refd to. [para. 44].

Proprietary Articles Trade Association v. Canada (Attorney General), [1931] A.C. 310 (P.C.), refd to. [para. 45].

Reference Re Roman Catholic Separate High Schools Funding, [1987] 1 S.C.R. 1148; 77 N.R. 241; 22 O.A.C. 321, refd to. [para. 47].

Reference Re Bill 30, An Act to Amend the Education Act (Ont.) - see Reference Re Roman Catholic Separate High Schools Funding.

New Brunswick Broadcasting Co. and Canadian Broadcasting Corp. v. Speaker of the House of Assembly (N.S.) et al., [1993] 1 S.C.R. 319; 146 N.R. 161; 118 N.S.R.(2d) 181; 327 A.P.R. 181, refd to. [para. 47].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 54].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 68].

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 69].

Loving v. Virginia (1967), 388 U.S. 1, refd to. [para. 70].

Miron and Valliere v. Trudel et al., [1995] 2 S.C.R. 418; 181 N.R. 253; 81 O.A.C. 253, refd to. [para. 71].

Gosselin v. Quebec (Procureur général) (2002), 298 N.R. 1 (S.C.C.), refd to. [para. 78].

Walsh v. Bona (2002), 297 N.R. 203; 210 N.S.R.(2d) 273; 659 A.P.R. 273 (S.C.C.), refd to. [para. 84].

Nova Scotia (Attorney General) v. Walsh - see Walsh v. Bona.

Eaton v. Board of Education of Brant County, [1997] 1 S.C.R. 241; 207 N.R. 171; 97 O.A.C. 161, refd to. [para. 88].

Lavoie et al. v. Canada et al., [2002] 1 S.C.R. 769; 284 N.R. 1, refd to. [para. 92].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 113].

Sauvé v. Canada (Chief Electoral Officer) et al. (2002), 294 N.R. 1 (S.C.C.), refd to. [para. 114].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 145].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 109]; sect. 2(a), sect. 15(1) [para. 1].

Constitution Act, 1867, sect. 91(26), sect. 92(12) [para. 38].

Authors and Works Noticed:

Hogg, Peter W., Constitutional Law of Canada (4th Ed. 1997) (Looseleaf), pp. 15-43, 15-44 [para. 43].

Counsel:

Roslyn J. Levine, Q.C., Gail Sinclair and Michael H. Morris, for the Attorney General of Canada, appellant/respondent by way of cross-appeals;

Martha A. McCarthy and Joanna L. Radbord, for the applicant couples, respondents/appellants by way of cross-appeal;

R. Douglas Elliott, R. Trent Morris and Victoria Paris, for the Metropolitan Community Church of Toronto, respondent/appellant by way of cross-appeal;

Lisa J. Solmon, for the Attorney General of Ontario, respondent;

Leslie Mendelson and Roberto E. Zuech, for the Clerk of the City of Toronto, respondent;

Cynthia Petersen and Vanessa Payne, for Egale Canada Inc., intervenor;

Peter R. Jervis and Bradley W. Miller, for The Interfaith Coalition on Marriage and Family, intervenor;

David M. Brown and Cindy Silver, for The Association for Marriage and the Family in Ontario, intervenor;

Ed Morgan, for the Canadian Coalition of Liberal Rabbis for Same-Sex Marriage, intervenor;

Leslie A. Reaume, Andrea Wright and Elizabeth Kikuchi, for the Canadian Human Rights Commission, intervenor.

This appeal and cross-appeals were heard on April 22 to 25, 2003, before McMurtry, C.J.O., MacPherson and Gillese, JJ.A., of the Ontario Court of Appeal. The following decision was delivered by the Court on June 10, 2003.