Date: Fri, 15 Dec 95 23:52:19 -0500 From: Timothy Ross Wilson Subject: Greer J. dissenting in Layland v. Ontario (ss marriage for immigration purposes) pt I Re Layland and Beaulne and Ontario Minister of Consumer & Commercial Relations; Attorney General of Canada et al., Intervenors* [Indexed as: Layland v. Ontario (Minister of Consumer & Commercial Relations)] 14 O.R. (3d) 658 [1993] O.J. No. 575 Action No. 234/92 Ontario Court (General Division), Divisional Court, Southey, Sirois and Greer JJ. March 15, 1993 *Leave to appeal was granted to the applicants by the Court of Appeal on June 7, 1993, as was a motion by C.E. Schouwerwou and W.E. Shannon to be added as applicants/appellants. Charter of Rights and Freedoms -- Equality rights -- Common law limitation of marriage to persons of opposite sex not constituting discrimination against persons of same sex who wish to marry each other -- Canadian Charter of Rights and Freedoms, s. 15(1). Family law -- Marriage -- Persons of same sex not having capacity to marry one another under common law of Canada applicable to Ontario. The applicants, who were both male and who were cohabiting in a sexual relationship, applied under s. 8(4) of the Marriage Act, R.S.O. 1990, c. M.3, for judicial review of the refusal to issue a marriage licence to them. They argued that the limitation which prevents persons of the same sex from marrying violated their equality rights under s. 15(1) of the Canadian Charter of Rights and Freedoms. Held, the application should be dismissed. Per Southey J. (Sirois J. concurring): Under the common law of Canada applicable to Ontario, a valid marriage can take place only between a man and a woman, and persons of the same sex do not have the capacity to marry one another. [...] GREER J. (dissenting): -- I have had the opportunity of reading the reasons of Southey and Sirois JJ., and with respect, I cannot agree with their reasoning and conclusions regarding the applicants' application for judicial review of the refusal by an employee of the Ottawa City Clerk's Office to grant them a marriage licence. One of the questions the court was being asked to consider was whether there was a common law prohibition against same-sex marriages. The object of the common law is to solve difficulties and adjust relations in social and commercial life. It must meet, so far as it can, sets of fact abnormal as well as usual. It must grow with the development of the nation. It must face and deal with changing or novel circumstances. Unless it can do that it fails in its function and declines in its dignity and value. An expanding society demands an expanding common law. That the common law expands to meet social needs is not a new concept. The above words were written by McCardie J. of the King's Bench Division in a 1924 sale of goods case, Prager v. Blatspiel, Stamp & Heacock Ltd., [1924] 1 K.B. 566 at p. 570, [1924] All E.R. Rep. 524. The common law does not remain static. Its very essence is that it is able to grow to meet the expanding needs of society. Further, the court is being asked to consider for judicial review the refusal of the City Clerk's Office in Ottawa to issue a marriage licence to two males on the ground that such marriages are illegal in Canada. It is being asked to examine the decision in light of recent Charter cases, and to determine if such a restriction is a breach of the applicants' equality rights under s. 15 of the Canadian Charter of Rights and Freedoms. Is marriage restricted to heterosexual couples, and if so, does that restriction discriminate against homosexuals on the ground of their sexual orientation? Another issue to be determined is whether the Charter can be invoked to challenge the constitutional validity of whether there is a common law prohibition against same-sex marriages in Canada. The position of the applicants is being supported by the intervenor, Metropolitan Community Church of Ottawa/Iglise communautaire mitropolitaine d'Ottawa ("the Church"). The Church takes the position that there is no restriction at common law against marriages of persons of the same sex. On the other hand, the respondent Minister takes the position that there is such a restriction and that at common law the applicants lack the capacity to marry one another. The Minister takes no position on the Charter as it is his position that capacity to marry is within the exclusive legislative authority of the Parliament of Canada under Class 26 of s. 91 of the Constitution Act, 1867. The Attorney General of Canada, as intervenor ("the Attorney General"), opposes the application. He takes the position that the common law societal concept of marriage restricts marriage to heterosexual couples. In addition, he holds that since marriage and divorce are within the domain of the federal government, the federal common law is to be formulated as it applies to Ontario only, and not to the other provinces. It is the Attorney General's position that there is no common law ban on homosexual persons marrying as long as they do not marry persons of the same sex. The Attorney General commissioned a lengthy historical and cross-cultural review of the nature of marriage as it relates to gays and lesbians. This resulted in the report filed on behalf of the Attorney General by Dr. Charles Hobart, a sociology professor at the University of Alberta. The major flaw in the report, as I see it, is that it canvasses no sociological aspects of gay and lesbian society in the 20th century, nor does it address the evolutionary aspect of the common law's expansion to meet society's needs in general. I am of the view that restricting marriages to heterosexual couples infringes and violates the applicants' s. 15(1) Charter rights and that such violation cannot be justified under s. 1 of the Charter. I also agree with the position of the Church that there is no common law prohibition against same-sex marriages in Canada. 1. The facts The applicants, Todd Layland and Pierre Beaulne, have cohabited in a homosexual relationship since August 1, 1991. They wish to marry one another. On or about January 16, 1992, they attended at the office of the City Clerk, City of Ottawa, and submitted a marriage licence application. The marriage licence application is a form issued by the office of the Registrar General for the Province of Ontario. On the form, the applicants are asked to answer a number of questions about their names, addresses, religious denomination, their marital status, details of any divorce, and data relating to their parents. There is nothing on the application which asks what the applicants' sex is, nor are there any words which prohibit same-sex marriages. There are headings labelled "Bride" and "Bridegroom". Nevertheless Ms. Colette Latour, an employee of the City of Ottawa City Clerk's Office, refused to accept the marriage licence application. Both applicants state in their affidavits that Ms. Latour, in refusing their applications, said that same-sex marriages are "illegal in Canada". Many same-sex religious commitment ceremonies are taking place in Canada and the United States today but do not have the sanctity of being a marriage recognized by the state. Such ceremonies are performed by the Metropolitan Community Church of Ottawa and in other Canadian cities where the Church has branches. The parties participating in the ceremony receive a "Certificate of Holy Union" issued by the Church which states that the parties "were joined together in the Rite of Holy Union according to the Scriptural practice of the Church of Jesus, the Christ". Reverend Virginia Reinecker, the pastor of the Church in Ottawa, states in her Affidavit sworn May 19, 1992 in support of the applicants' position, that these commitment ceremonies are analogous to marriages for lesbian and gay couples. It is her belief that there is no "qualitative difference between heterosexual and homosexual commitments which would warrant restricting the right to marry to heterosexuals". 2. The Marriage Act The Marriage Act, R.S.O. 1990, c. M.3, makes no reference to sexual orientation in connection with marriages. The authority to marry is set out under s. 4 as follows: 4. No marriage may be solemnized except under the authority of a licence issued in accordance with this Act or the publication of banns. Section 5(1) sets out who can marry. It reads: 5(1) Any person who is of the age of majority may obtain a licence or be married under the authority of the publication of banns, provided no lawful cause exists to hinder the solemnization. Section 8(4) allows the applicants to obtain review of a refusal to issue such a licence. It reads: 8(4) Where an issuer refuses to issue a licence, or the Minister refuses to issue an authorization under subsection (3), the applicant may apply to the Divisional Court for judicial review under the Judicial Review Procedure Act and for an order directing that a licence be issued to the applicant and if the court finds that the applicant is so entitled it may make such an order. The applicants are now asking the court for such judicial review. The other statute which affects marriages is the Marriage (Prohibited Degrees) Act, 38-39 Eliz. II, c. 46. It states that a marriage is void only if under s. 3(2) persons who marry are related in the manner described in s. 2(2)(a), (b) or (c). The persons described in these paragraphs are persons related lineally by consanguinity or adoption, brothers or sisters of the whole or half-blood by consanguinity, and a brother or sister by adoption. The applicants Layland and Beaulne are not related in any manner so described. Nowhere, therefore, does the provincial legislature or the federal government, by statute, prohibit marriages of same-sex persons. The Minister took the position that a marriage licence could not be issued even if the Minister thought that the Charter had been infringed, that it must follow the federal common law, that it cannot unilaterally declare something unconstitutional, and that the law is presumed to be valid unless declared otherwise. 3. Pre-Charter case law The Minister and the Attorney General relied on pre-Charter case law involving marriage issues. Each referred to Hyde v. Hyde (1866), L.R. 1 P. & D. 130. That case involved a polygamous marriage. There the court held at p. 133 the following: I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman, to the exclusion of all others. The Minister took the position that in Robb v. Robb (1891), 20 O.R. 591 (Com. Pleas Div.), another case involving a polygamous marriage, that the proposition set down on p. 602 that marriage comes about by the "mutual consent of competent persons to take one another for man and wife during their joint lives" (as set out in Beamish v. Beamish (1861), 9 H.L. Cas. 274 at p. 306, 5 L.T. 97) still applies. Further, in the Manitoba case of North v. Matheson (1974), 20 R.F.L. 112, 53 D.L.R. (3d) 280 (Co. Ct.), the issue before the court was whether the form of marriage which two males had entered into and for which they applied for a marriage licence, should be accepted by the registrar. In North, the court made reference to the definition as set out in Hyde and made reference to the case of Corbett v. Corbett (Ashley) (No. 2), [1970] 2 All E.R. 33. Ormrod J. stated at p. 48 of that case: The fundamental purpose of law is the regulation of the relations between persons, and between persons and the State or community. For the limited purposes of this case, legal relations can be classified into those in which the sex of the individuals concerned is either irrelevant, relevant or an essential determinant of the nature of the relationship. . . . sex is clearly an essential determinant of the relationship called marriage, because it is and always has been recognised as the union of a man and woman. It is the institution on which the family is built, and in which the capacity for natural heterosexual intercourse is an essential element. It has, of course, many other characteristics, of which companionship and mutual support is an important one, but the characteristics which distinguish it from all other relationships can only be met by two persons of opposite sex. I disagree with my colleagues' conclusion that these cases should be applied, given what has taken place since the Charter was passed, and given the body of law which has applied s. 15 of the Charter. I further disagree with their conclusion that the federal common law in Canada, applicable to Ontario, is that a valid marriage can only take place between persons of the opposite sex. 4. The Charter The Canadian Charter of Rights and Freedoms is Part I of the Constitution Act, 1982. Section 1 of the Charter is entitled "Guarantee of Rights and Freedoms". It reads: 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. Section 15 of the Charter is entitled "Equality Rights". Section 15(1) guarantees equality before and under the law and equal protection and benefit of the law. It reads: 15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. The history of s. 15(1) shows that there has been a case-by- case challenge of laws which appear to contravene s. 15(1). In R. v. Turpin, [1989] 1 S.C.R. 1296, 39 C.R.R. 306, the court examined the s. 15 guarantee of equality before the law and how it is designed to advance the value that all persons not suffer any greater disability in the substance and application of the law than others. Madam Justice Wilson held the following at pp. 1331-32: In determining whether there is discrimination on grounds relating to the personal characteristics of the individual or group, it is important to look not only at the impugned legislation which has created a distinction that violates the right to equality but also to the larger social, political and legal context. McIntyre J. emphasized in Andrews (at p. 167): For, as has been said, a bad law will not be saved merely because it operates equally upon those to whom it has application. Nor will a law necessarily be bad because it makes distinctions. Accordingly, it is only by examining the larger context that the court can determine whether differential treatment results in inequality or whether, contrariwise, it would be identical treatment which would in the particular context result in inequality or foster disadvantage. A finding that there is discrimination will, I think, in most but perhaps not all cases, necessarily entail a search for disadvantage that exists apart from and independent of the particular legal distinction being challenged. . . . . . I suggested in my reasons in Andrews that the determination of whether a group falls into an analogous category to those specifically enumerated in s. 15 is "not to be made only in the context of the law which is subject to challenge but rather in the context of the place of the group in the entire social, political and legal fabric of our society" (p. 152). If the larger context is not examined, the s. 15 analysis may become a mechanical and sterile categorization process conducted entirely within the four corners of the impugned legislation. A determination as to whether or not discrimination is taking place, if based exclusively on an analysis of the law under challenge is likely, in my view, to result in the same kind of circularity which characterized the similarly situated similarly treated test clearly rejected by this Court in Andrews. The wording in Turpin, in my view, applies equally to the case at bar. One cannot look simply within the four corners of what pre-Charter cases held was a marriage. It is important that the issue be properly placed in the larger social context of our modern-day society and its mores and expectations. The Charter cases show that our courts have found that "choice" is a benefit of the law. In the case at bar, the applicants have been denied their right to choose whom they wish to marry. In my view, the right to choose is a fundamental right and applies to the context of marriage in our society. It is a basic theory in our society that the state will respect choices made by individuals and the state will avoid subordinating these choices to any one conception: see R. v. Morgentaler, [1988] 1 S.C.R. 30, 31 C.R.R. 1. An individual's s. 15 guarantees are designed to protect the individual's right to choose. Our courts and the state have always attempted to redress historic prejudice and bigotry through the application of the law. In my view, this is what the Charter was intended to do. The Attorney General argued that the law is not one which is directly discriminatory. He took the position that the proper question for the court to determine is whether the Charter requires the courts to extend the common law definition of marriage to gays and lesbians. Is the law discriminatory and does it require the common law to be expanded? I think it does and it has. The Attorney General argues that the proper approach to take is the contextual approach to the Charter as was set out by Sopinka J. in Chiarelli v. Canada (Minister of Employment & Immigration), [1992] 1 S.C.R. 711 at p. 732, 8 C.R.R. (2d) 234. He argues that one must look to the principles and policies underlying the law. Chiarelli was an immigration case and dealt with policies governing citizens and non-citizens. In the case at bar, I am of the view that one must examine the case in the context of which the claim arises and in light of the applicants' s. 15 guarantees. In 1967, the United States Supreme Court was faced with the legal challenge of examining the anti-interracial marriage provisions of the State of Virginia. At that time, 16 states had such provisions in their legislation. The Supreme Court, in Loving v. Virginia, 388 U.S. 1, 18 L. Ed. 2d 1010 (1967), struck down the Virginia anti-interracial marriage as being unconstitutional. What had been a societal concept of marriage was found by the Supreme Court of the United States to be unconstitutional. The Supreme Court held that marriage was a basic civil right of the individual and that such a law had no legitimate overriding purpose which was "independent of invidious racial discrimination which justifies this classification" (see p. 11). The discriminatory law was struck down. In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, 36 C.R.R. 193, McIntyre J. set out how the concept of equality applies under s. 15(1) of the Charter. At pp. 163-64 he held: Section 15(1) of the Charter provides for every individual a guarantee of equality before and under the law, as well as the equal protection and equal benefit of the law without discrimination. This is not a general guarantee of equality; it does not provide for equality between individuals or groups within society in a general or abstract sense, nor does it impose on individuals or groups an obligation to accord equal treatment to others. It is concerned with the application of the law. McIntyre J. further held at p. 171: It is clear that the purpose of s. 15 is to ensure equality in the formulation and application of the law. The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration. It has a large remedial component. I adopt the reasoning and analysis of McIntyre J. in Andrews regarding the promotion of equality in the application of the law. If we are to promote a "society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration", as set out in Andrews, then the common law must evolve to meet that need and the common law and Charter rights must mesh together to effect that promotion. And at pp. 174-75 McIntyre J. also held: Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed. It is therefore clear that s. 15 was designed to protect those groups who suffer social, political and legal disadvantages in our society. In Douglas v. Canada, unreported, Court No. T-160-90, F.C.T.D., October 27, 1992 [now reported 12 C.R.R. (2d) 284, 98 D.L.R (4th) 129], the court found that the government's policy and interim policies which evolved regarding the service of homosexuals in the Canadian Armed Forces, was contrary to the Charter. The case helped to alleviate one of those disadvantages. Douglas has shown that s. 15 has a remedial component to it which allows wrongs to be redressed and persons' rights vindicated. In Knodel v. British Columbia (Medical Services Commission) (1991), 58 B.C.L.R. (2d) 356, [1991] 6 W.W.R. 728 (S.C.), a same-sex partner was denied medical coverage under his partner's plan. The court read into the definition of "spouse", in the regulations, the inclusion of same-sex spouses. The court found that the applicant homosexual's s. 15(1) Charter rights had been denied when medical coverage for his partner was denied. The court further found that the applicant had satisfied the threshold test of demonstrating unequal treatment under the law. In my view, the applicants have satisfied that threshold test. Equality has been denied them on an analogous ground under s. 15(1) of the Charter in that they have been denied equality on the basis of their sexual orientation. The language of s. 15 is open-ended. The applicants must be looked at in the context of the place of homosexuals as a group in the entire social, political and legal fabric of our society: see Andrews, supra. In many aspects, homosexuals have been politically powerless, just as non-citizens were powerless in the Andrews case, and they have often been subject to negative treatment and bigotry. In Haig v. Canada (1992), 9 O.R. (3d) 495, 10 C.R.R. (2d) 287, the Ontario Court of Appeal held that sexual orientation is an analogous ground of discrimination under s. 15 of the Charter. There the court said at p. 503: One need not look beyond the evidence before us to find disadvantage that exists apart from and independent of the legal distinction created by the omission of sexual orientation as a prohibited ground of discrimination in s. 3(1) of the Canadian Human Rights Act. The social context which must be considered includes the pain and humiliation undergone by homosexuals by reason of prejudice towards them. It also includes the enlightened evolution of human rights social and legislative policy in Canada, since the end of the Second World War, both provincially and federally. The failure to provide an avenue for redress for prejudicial treatment of homosexual members of society and the possible interference from the omission that such treatment is acceptable create the effect of discrimination offending s. 15(1) of the Charter. I adopt the reasoning of the court in Haig. In my view, the impact of the denial of the granting of a marriage certificate to the applicants, is discriminatory. It is burdensome on the applicants and others who wish to marry persons of the same sex. The message they receive must surely give them the perception that they are inferior persons in our society. The same type of discriminatory impact was seen in Leshner v. Ontario, unreported, Ontario Human Rights Board of Inquiry, August 31, 1992. There the Board held at p. 2 of its decision that: . . . marriage and the "traditional family" are sustaining institutions of society, but that they should not be used as a means to impose discrimination and disadvantage on others. Support for the traditional family or for the institution of marriage should not entail the exclusion and disadvantaging of other family forms. In Leshner, the Board determined that Leshner's same-sex partner fell within the definition of "spouse" by reading the definition of "spouse" down to delete the words "of the opposite sex", but leaving in the word "conjugal", as defined in s. 10(1) of the Ontario Human Rights Code, R.S.O. 1990, c. H.19. The Attorney General takes the position that the Board of Inquiry in Leshner analyzed the case in the wrong way. He argued that the case should have asked whether it was discriminatory to limit the benefit only to spouses or whether it should be expanded to include gay and lesbian partners. I am of the view that the Board properly analyzed the case. The Attorney General relied on the case of Egan v. Canada (1991), 87 D.L.R. (4th) 320, [1992] 1 F.C. 687 (T.D.), in support of its position. The applicants argue that that case was wrongly decided. In Egan the Federal Court, Trial Division, held that the term "spouse", as defined in the Old Age Security Act, R.S.C. 1985, c. O-9, did not discriminate on the basis of sex or on the basis of sexual orientation, and was therefore not contrary to s. 15 of the Charter. The parties were homosexuals who had lived together as partners in a relationship which had lasted 40 years. In my view, the court in Egan ignored the principles as set down in Knodel, which found the applicants, in a similar fact situation, had satisfied the test of demonstrating unique treatment under the law. Having met the test in s. 15(1) of the Charter, the burden then shifts from the applicants to the Attorney General who is seeking to uphold the Ministry's denial to issue the marriage licence. The Attorney General argued that the denial satisfies s. 1 of the Charter and that such denial is demonstrably justified in a free and democratic society. In R. v. Oakes, [1986] 1 S.C.R. 103, 19 C.R.R. 308, Dickson C.J.C. explained that one of the contextual elements of interpretation of s. 1 is provided by the words "free and democratic society". At p. 136 he held: Inclusion of these words as the final standard of justification for limits on rights and freedoms refers the Court to the very purpose for which the Charter was originally entrenched in the Constitution: Canadian society is to be free and democratic. The Court must be guided by the values and principles essential to a free and democratic society which I believe embody, to name but a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society. The underlying values and principles of a free and democratic society are the genesis of the rights and freedoms guaranteed by the Charter and the ultimate standard against which a limit on a right or freedom must be shown, despite its effect, to be reasonable and demonstrably justified. And further at pp. 138-39: To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures responsible for a limit on a Charter right or freedom are designed to serve, must be "of sufficient importance to warrant overriding a constitutionally protected right or freedom": R. v. Big M Drug Mart Ltd., supra, at p. 352. The standard must be high in order to ensure that objectives which are trivial or discordant with the principles integral to a free and democratic society do not gain s. 1 protection. It is necessary, at a minimum, that an objective relate to concerns which are pressing and substantial in a free and democratic society before it can be characterized as sufficiently important. Second, once a sufficiently significant objective is recognized, then the party invoking s. 1 must show that the means chosen are reasonable and demonstrably justified. . . . There are, in my view, three important components of the proportionality test. First, the measures adopted must be carefully designed to achieve the objective in question. They must not be arbitrary, unfair or based on irrational considerations. In short, they must be rationally connected to the objective. Second,