Reference Re Marriage Act, (2011) 366 Sask.R. 48 (CA)

• Judge: Klebuc, C.J.S., Vancise, Richards, Smith and Ottenbreit, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: January 10, 2011
• Jurisdiction: Saskatchewan
• Citations: (2011), 366 Sask.R. 48 (CA);2011 SKCA 3

Ref. Re Marriage Act (2011), 366 Sask.R. 48 (CA);

    506 W.A.C. 48

MLB headnote and full text

Temp. Cite: [2011] Sask.R. TBEd. JA.003

In The Matter of Marriage Commissioners Appointed under the Marriage Act, 1995, S.S. 1995, c. M-4.1

In The Matter Of a Reference by the Lieutenant Governor in Council to the Court of Appeal under The Constitutional Questions Act, R.S.S. 1978, c. C-29

(1800; 2011 SKCA 3)

Indexed As: Reference Re Marriage Act

Saskatchewan Court of Appeal

Klebuc, C.J.S., Vancise, Richards, Smith and Ottenbreit, JJ.A.

January 10, 2011.

Summary:

Following the 2004 decision in Reference Re Same-Sex Marriage (SCC), same-sex marriages were legally valid and Parliament enacted legislation redefining marriage to include same-sex unions. Some Saskatchewan marriage commissioners refused to solemnize same-sex marriages on the ground that to do so would violate their religious beliefs. That position gave rise to proceedings under the Saskatchewan Human Rights Code and a civil action in the Court of Queen's Bench. The province, by way of reference, requested a ruling on the constitutionality of two proposed amendments to the Marriage Act. The first proposed amendment would permit a marriage commissioner appointed before November 5, 2004, to decline to solemnize a same-sex marriage if performing the ceremony would violate his or her religious beliefs. The second proposed amendment, an alternative to the first amendment, would permit all marriage commissioners, regardless of their date of appointment, to decline to solemnize same-sex marriages if doing so was contrary to their religious beliefs.

The Saskatchewan Court of Appeal held that either proposed amendment would violate the equality rights of gay and lesbian persons (Charter, s. 15(1)) and the violations were not reasonable limits prescribed by law under s. 1 of the Charter.

Civil Rights - Topic 383

Freedom of conscience and religion - Infringement of - Conditions precedent - The Saskatchewan Court of Appeal stated that "a breach of s. 2(a) is established if two conditions are satisfied. First, the claimant must sincerely hold a belief, or believe in a practice, that has a nexus with religion. Second, the measure in issue must be shown to interfere, in more than a trivial or insubstantial way, with the claimant's ability to act in accordance with his or her practices or beliefs." - See paragraph 59.

Civil Rights - Topic 397

Freedom of conscience and religion - Infringement of - Marriage restrictions (incl. same- sex marriages) - [See Civil Rights - Topic 953 ].

Civil Rights - Topic 953

Discrimination - Sexual orientation - Homosexuals (incl. same-sex couples) - Following the 2004 decision in Reference Re Same-Sex Marriage (SCC), same-sex marriages were legally valid - Some Saskatchewan marriage commissioners refused to solemnize same-sex marriages on the ground that it would violate their religious beliefs - At issue was whether proposed amendments to the Marriage Act, which would allow marriage commissioners to refuse to solemnize same-sex civil marriages on religious grounds, violated the equality rights of gays and lesbians (Charter, s. 15(1)) and, if so, whether the amendments would be reasonable limits prescribed by law under s. 1 - The Saskatchewan Court of Appeal held that (1) the amendments would discriminate against gays and lesbians and (2) forcing marriage commissioners to solemnize same-sex marriages would infringe their s. 2(a) Charter right to freedom of religion - The amendments created a distinction based on an analogous ground (sexual orientation) and created a disadvantage by perpetuating prejudice or stereotyping - The issue then became, on a s. 1 analysis, how to manage "the intersection of the freedom of religion of marriage commissioners on the one hand, and the equality rights of gay and lesbian individuals on the other" - The court held that the objective of the amendments, being "the accommodation of the s. 2(a) Charter freedoms of commissioners by relieving them of the obligation to perform marriage ceremonies" that were contrary to their religious beliefs, was an objective of sufficient importance to warrant limiting the Charter rights of gays and lesbians (first step under Oakes) - Further, allowing marriage commissioners to opt out of solemnizing same-sex marriages was rationally connected to the objective of accommodating their religious beliefs - However, as there existed less restrictive means of achieving those objectives, the amendments failed to pass the minimal impairment portion of the proportionality test - Although unnecessary to decide the last part of the proportionality test, the court opined that the positive aspects sought by the amendments were outweighed by their deleterious effects - Persons who voluntarily chose to be a marriage commissioner could not, in discharging their duty to provide governmental services on an impartial and non-discriminatory basis, discriminate against gays and lesbians on the basis of their personal religious beliefs - The proposed amendments violated s. 15(1) and would not be reasonable limits prescribed by law under s. 1 - The court stated that "this is clearly one of those situations where religious freedom must yield to the larger public interest" - See paragraphs 1 to 100.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - At issue was whether proposed amendments to the Marriage Act, which violated the equality rights of gays and lesbians contrary to s. 15(1) of the Charter, were nonetheless saved as reasonable limits saved by law under s. 1 of the Charter - The Saskatchewan Court of Appeal stated the following respecting the s. 1 analysis: "the first requirement is that the objective of the impugned law be of sufficient importance to warrant overriding a Charter right or freedom. The second requirement involves the satisfaction of a form of 'proportionality' test. Three factors are considered in determining if a law is proportional in this sense: (a) the particulars of the law must be rationally connected to its objective, (b) the law must impair the right or freedom in question as minimally as possible, and (c) there must be an overall proportionality between the deleterious effects of the law and its object." - See paragraph 68.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - The Saskatchewan Court of Appeal stated that "in order to respect the integrity of the Oakes analytical framework, the effect of an impugned law cannot be allowed to wholly drive the characterization of the objective of the law. Any such approach will confuse and conflate the first step of the Oakes inquiry, concerning the importance of the objective of the law, with the final step of the inquiry which, of course, concerns the proportionality between the deleterious effects of the law and the merit of its objective. While the effect of a law can no doubt sometimes cast light on its true purpose, the statement of the objective of the law for purposes of a s. 1 analysis turns on considerations broader than its mere impact." - See paragraph 72.

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (Charter, s. 1) - [See Civil Rights - Topic 953 ].

Cases Noticed:

Reference Re Same-Sex Marriage, [2004] 3 S.C.R. 698; 328 N.R. 1; 2004 SCC 79, refd to. [para. 4].

N.W. et al. v. Canada (Attorney General) et al. (2004), 255 Sask.R. 298; 246 D.L.R.(4th) 345; 2004 SKQB 434, refd to. [para. 11].

Nichols v. M.J. et al., [2009] 10 W.W.R. 513; 339 Sask.R. 35; 2009 SKQB 299, refd to. [para. 14].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 31].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 32].

R. v. Kapp (J.M.) et al., [2008] 2 S.C.R. 483; 376 N.R. 1; 256 B.C.A.C. 75; 431 W.A.C. 75; 2008 SCC 41, refd to. [para. 33].

Ermineskin Indian Band and Samson Indian Band v. Canada (Minister of Indian Affairs and Northern Development) et al., [2009] 1 S.C.R. 222; 384 N.R. 203; 2009 SCC 9, refd to. [para. 34].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 37].

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. 37].

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. 39].

Hislop et al. v. Canada (Attorney General), [2007] 1 S.C.R. 429; 358 N.R. 197; 222 O.A.C. 324; 2007 SCC 10, refd to. [para. 39].

Egan and Nesbit v. Canada, [1995] 2 S.C.R. 513; 182 N.R. 161, refd to. [para. 45].

Law Society of British Columbia v. Mangat, [2001] 3 S.C.R. 113; 276 N.R. 339; 157 B.C.A.C. 161; 256 W.A.C. 161; 2001 SCC 67, refd to. [para. 51].

R. v. Big M Drug Mart, [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161, refd to. [para. 55].

Syndicat Northcrest v. Amselem et al., [2004] 2 S.C.R. 551; 323 N.R. 59; 2004 SCC 47, refd to. [para. 56].

Sheena B., Re, [1995] 1 S.C.R. 315; 176 N.R. 161; 78 O.A.C. 1, refd to. [para. 57].

R.B. v. Children's Aid Society of Metropolitan Toronto - see Sheena B., Re.

Attis v. Board of Education of District No. 15 et al., [1996] 1 S.C.R. 825; 195 N.R. 81; 171 N.B.R.(2d) 321; 437 A.P.R. 321, refd to. [para. 58].

Ross v. New Brunswick School District No. 15 - see Attis v. Board of Education of District No. 15 et al.

Hutterian Brethren of Wilson Colony et al. v. Alberta, [2009] 2 S.C.R. 567; 390 N.R. 202; 460 A.R. 1; 462 W.A.C. 1; 2009 SCC 37, refd to. [para. 59].

Multani v. Commission scolaire Marguerite-Bourgeoys et al., [2006] 1 S.C.R. 256; 345 N.R. 201; 2006 SCC 6, refd to. [para. 59].

R. v. Jones, [1986] 2 S.C.R. 284; 69 N.R. 241; 73 A.R. 133, refd to. [para. 64].

Canadian Broadcasting Corp. v. Dagenais et al., [1994] 3 S.C.R. 835; 175 N.R. 1; 76 O.A.C. 81, refd to. [para. 66].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 68].

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239, refd to. [para. 81].

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

RJR-MacDonald Inc. et Imperial Tobacco Ltd. v. Canada (Procureur général), [1995] 3 S.C.R. 199; 187 N.R. 1, refd to. [para. 81].

Thomson Newspapers Co. et al. v. Canada (Attorney General), [1998] 1 S.C.R. 877; 226 N.R. 1; 109 O.A.C. 201, refd to. [para. 90].

M.J. v. Nichols (2008), 63 C.H.R.R. D/145, refd to. [para. 95].

Manitoba Language Rights Reference, [1985] 1 S.C.R. 721; 59 N.R. 321; 35 Man.R.(2d) 83, refd to. [para. 97].

Reference Re Secession of Quebec, [1998] 2 S.C.R. 217; 228 N.R. 203, refd to. [para. 97].

Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827; 320 N.R. 49; 348 A.R. 201; 321 W.A.C. 201; 2004 SCC 33, refd to. [para. 113].

R. v. Bryan (P.C.) et al., [2007] 1 S.C.R. 527; 359 N.R. 1; 237 B.C.A.C. 33; 392 W.A.C. 33; 2007 SCC 12, refd to. [para. 113].

Trinity Western University et al. v. College of Teachers (B.C.) et al., [2001] 1 S.C.R. 772; 269 N.R. 1; 151 B.C.A.C. 161; 249 W.A.C. 161; 2001 SCC 31, refd to. [para. 146].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 15(1) [para. 29].

Marriage Act, S.S. 1995, c. M-4.1, sect. 3, sect. 4 [para. 5]; sect. 31 [para. 9].

Counsel:

Michael Megaw, Q.C., and Scott Hopley, counsel appointed to argue in favour of the constitutional validity of the possible amendments to the Marriage Act, 1995;

Reynold Robertson, Q.C., Sean Sinclair and Candice Grant, counsel appointed to argue against the constitutional validity of the possible amendments to the Marriage Act, 1995;

Cynthia Petersen, for Egale Canada Inc.;

Thomas Schuck and Ruth Ross, for the Christian Legal Fellowship;

Dale Blenner-Hassett, for the Canadian Fellowship of Churches and Ministers;

J. Scott Kennedy and Faye Sonier, for the Evangelical Fellowship of Canada;

Grace Mackintosh, Gerald Chipeur, Q.C., and Jill Wilkie, for the Seventh-Day Adventist Church of Canada and the Manitoba-Saskatchewan Conference of the Seventh-Day Adventist Church;

Patrick Loran, for Reverend Paul Donlevy;

Philip Fourie, for Bruce Goertzen, Larry Bjerland and Désirée Dichmont;

Janice Gingell, for the Saskatchewan Human Rights Commission;

Merrilee Rasmussen, Q.C., for the Canadian Civil Liberties Association;

Larry Kowalchuk, for the Saskatchewan Federation of Labour, Solidarity and Pride Committee et al.

This reference was heard on May 13-14, 2010, before Klebuc, C.J.S., Vancise, Richards, Smith and Ottenbreit, JJ.A., of the Saskatchewan Court of Appeal.

On January 10, 2011, the judgment of the Court of Appeal was delivered and the following opinions were filed:

Richards, J.A. (Klebuc, C.J.S. and Ottenbreit, J.A., concurring) - see paragraphs 1 to 101;

Smith, J.A. (Vancise, J.A., concurring) - see paragraphs 102 to 162.