Press Release

October 3, 2001

B.C. Court Releases Decision in Same-Sex Marriage Case

In the first case of a landmark Canadian trilogy the BC Supreme Court held that to restrict marriage to heterosexuals is discriminatory, and contrary to the Canadian Charter of Rights and Freedoms. However, lesbians and gay men still cannot marry.

Two actions challenging the restriction of marriage to heterosexual partners were heard together in Vancouver last month. One was begun by the BC Partners, three couples denied marriage licences in the province; the other was begun by EGALE, and five couples whose applications for marriage licences had also been refused. Similar challenges will be heard next month, one in Ontario and one in Quebec.

"This is just the beginning," commented Robin Roberts, who, with her partner Diana Denny is one of the couples in the EGALE action. Added co-petitioner Tess Healy, "I am very encouraged. The court has made a groundbreaking decision in finding that it is contrary to the Charter to exclude us from marriage. That is a first for Canada. We believe that we are right, and we are in this case for the long haul."

The court relied on section 1 of the Charter to hold that even though it is discriminatory to exclude lesbians and gay men from marriage, to do so is legally acceptable. Section 1 of the Charter provides that if the government can show that a Charter breach is demonstrably justifiable, the discriminatory law can stand. In doing so, the court said that it was common sense that marriage is restricted to heterosexuals.

Two thirds of Canadians disagree. In a Leger poll released in June, that number agreed that lesbians and gays should have the right to marry. Though they are still unable to get a marriage licence, the parties were upbeat about the decision. "The important thing about the judgment to me is that the court recognized how unfair it is to deny lesbians and gay men this fundamental civil right," said Peter Cook, who with his partner Murray Warren is one of the couples in the B.C. Partners case. "We have a deep faith that the courts and the Canadian people will see that there is no common sense in discriminating against one part of a community".

"How can it be wrong, in this time of fragile freedoms in the world, to celebrate the love and commitment of two people who promise to support each other for all of their lives?" asked Jane Hamilton, one of the B.C. partners. The judge considered the history of marriage, and concluded that marriage had the meaning assigned to it in a pre-confederation English case called Hyde v. Hyde, as being between one man and one woman. Hyde and Hyde has been cited with approval by the BC Court of Appeal, but has not been relied on in Ontario and Quebec, so the parties are predicting a different result in those provinces.

It is expected that whatever the results at the lower court levels, the cases in all three provinces will be appealed and will ultimately be heard together by the Supreme Court of Canada.

For further information:
John Fisher, Executive Director, EGALE: 613-230-1043

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Advancing equality and justice for lesbian, gay, bisexual, and trans-identified people and their families across Canada