Press Release

July 12, 2002

Ontario Court Releases Landmark Judgment

SAME-SEX COUPLES HAVE EQUAL RIGHT TO MARRY

Halpern v. Canada (A.G.) is a judicial review application seeking full and equal marriage for same-sex couples.

Eight same-sex couples applied for civil marriage licences from the City of Toronto over the summer of 2000. The City, unsure of its legal obligations, has held their applications in abeyance pending directions from the courts. The couples are represented by Martha McCarthy and Joanna Radbord of Epstein Cole.

On January 14, 2001, two same-sex couples were married pursuant to a publication of banns at the Metropolitan Community Church of Toronto. The Province refused to register their marriage licences. These couples are represented by Douglas Elliott, Trent Morris and Victoria Paris of McGowan, Elliott & Kim.

Egale Canada, a national organization committed to promoting equality for lesbians, gays, bisexuals and transgendered people, intervened in support of the same-sex couples and the MCCT. Counsel for Egale are Cynthia Petersen and Vanessa Payne of Sack Goldblatt Mitchell.

The two cases were heard together on November 5, 2001 by Regional Senior Justice Blair, Associate Chief Justice Smith, and Justice Laforme, of the Ontario Superior Court of Justice (Divisional Court), Toronto.

The applicants’ cases for equal marriage were vigorously opposed by the federal government, which has jurisdiction over capacity to marry.

Today, the Ontario Divisional Court has unanimously ruled that the exclusion of same-sex couples from marriage is discriminatory and unconstitutional.

Justice Blair wrote:

“There is thus a short answer to the question posed by the Applicants in these two proceedings. It is this: the constitutional and Charter-inspired values which underlie Canadian society today dictate that the status and incidents inherent in the foundational institution of marriage must be open to same-sex couples who live in long-term, committed, relationships—marriage-like in everything but name—just as it is to heterosexual couples. Each is entitled to full and equal recognition, and the law must therefore be adapted accordingly.” (p. 20)

Justice LaForme wrote:

“The restriction against same-sex marriage is an offense to the dignity of lesbians and gays because it limits the range of relationship options available to them. The result is they are denied the autonomy to choose whether they wish to marry. This is turn conveys the ominous message that they are unworthy of marriage. For those same-sex couples who do wish to marry, impugned restriction represents a rejection of their personal aspirations and the denial of their dreams. (p. 118)

Further, I find that there is no merit to the argument that the rights and interests of heterosexuals would be affected by granting same-sex couples the freedom to marry. ... I cannot conclude that freedom of religion would be threatened or jeopardized by legally sanctioning same-sex marriage. (p. 118)

[T]he denial of equal marriage can—and no doubt does—reflect and reinforce existing, inaccurate understandings of the merits, capabilities and worth of lesbian and gay relationships within Canadian society. ... Excluding gays and lesbians from marriage disregards the needs, capacities, and circumstances of same-sex spouses and their children. It declares an entire class of persons unworthy of the recognition and support of state sanction for their marriages. (p. 204)

I do not accept that the objective of procreation is a basis that can support the restriction against same-sex marriage. Rather, it could reasonably be argued ... that it appears to be a mere pretext used to rationalize discrimination against lesbians and gays.” (p. 114)

The effect of the decision has been suspended for up to 24 months to enable Parliament and the provinces to comply with the decision.

All involved called upon the federal government to respect the decision to provide same-sex couples with the equal right to marry. “It is an outrage that the federal government has been wasting taxpayers’ money fighting to discriminate against its own citizens,” said John Fisher, Executive Director of Egale. “It’s time for the federal government to catch up to society, and respect the Court’s decision and the Constitution.”

Both the Law Commission of Canada and the Canadian Human Rights Commission have recently called for the extension of marriage laws to include same-sex couples. A recent Leger Marketing poll demonstrated that over 65% of Canadians support granting same-sex couples the equal right to marry.

For further info, call:
John Fisher, Executive Director of Egale: 1-888-204-7777; cell: 613-291-5187
Bob Gallagher, Media Liaison: cell: 416-456-4043; 416-392-4043

Egale Canada ©2010

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