Presentation
to the Standing Committee on Justice and Human Rights
House
of Commons of Canada
April
10, 2003
David
M. Brown
Barrister
and Solicitor
I. EXECUTIVE SUMMARY OF
POINTS:
A. First
Point: Parliament does not possess the constitutional jurisdiction to change
the definition of marriage in section 91(26) of the Constitution Act, 1867 to
include relationships between members of the same sex.
·
The word “marriage” contained in
sections 91(26) and 92(12) of the Constitution
Act, 1867 bears a distinct, constitutional meaning encompassing only a
union between a man and a woman;
·
this meaning – the union of a man and
a woman - underpins the constitutional assignment of legislative power over
social relationships between Parliament and the provinces reflected in sections
91(26) and 92(13), “Property and Civil Rights”;
·
under section 91(26) of the Constitution
Act, 1867 Parliament can legislate with respect to unions between men and
women; under section 92(13) of the Constitution Act, 1867 provincial
legislatures can legislate with respect to all other relationships, including
relationships between members of the same sex;
·
if Parliament purported to legislate
under section 91(26) to give legal recognition to same-sex relationships, it
would be intruding on provincial jurisdiction and any such federal legislation
would be ultra vires of Parliament;
·
for this reasons the courts cannot use
section 15 of the Charter to measure the constitutionality of the
meaning of “marriage” as the union of a man and a woman because the Charter cannot be used to alter a
provision in the Constitution Act, 1867 or change an allocation of legislative
powers that forms part of the Confederation compact;
·
consequently, the courts currently
considering the “same-sex marriage” cases in British Columbia, Ontario and
Quebec cannot compel Parliament to change the constitutional meaning of
marriage; any change to the meaning of
“marriage” in sections 91 and 92, and the allocation of legislative powers over
social relationships that it reflects, can only be brought about by way of
constitutional amendment.
B. Second Point: Marriage serves the needs of contemporary Canadian
society and the definition of marriage as the union of a man and a woman does
not discriminate against same-sex couples in any way that infringes section 15
of the Charter.
·
a legal distinction based on an
enumerated or analogous ground under section 15 of the Charter does not violate
section 15 unless it is found that the distinction is “discriminatory” (the
so-called “Law test”). A legal
distinction based on stereotypes will be found to be discriminatory; a legal
distinction based on actual differences or capacities will not. This is well established in the Supreme
Court’s jurisprudence.
·
the real legal question at stake in
the same-sex marriage debate is as follows:
does the constitutional definition of marriage as the union of a man and
a woman rest on stereotypical differences or actual differences
·
Marriage between a man and a woman
differs from a relationship between two members of the same-sex. Marriage, as a social institution,
recognizes and rests on this actual, not stereotypical, difference.
·
Marriage, as the union of a man and a
woman, is a unique social institution.
It is also an institution that is unique in ability to meet the needs of
contemporary Canadian society in a way that no other social institution or
relationship can. This is not to say
that other relationships between persons, whether they be non-sexual
relationships between members of opposite sexes or sexual relationships between
members of the same-sex lack strong emotional bonds or patterns of financial
dependence. However, such relationships
do not serve Canadian society in the unique way that marriage does.
·
Marriage “complements nature with
culture for the sake of the intergenerational cycle“ in three defining ways:
(i) marriage
promotes the long-term co-operation between men and women;
(ii) marriage
perpetuates humanity through procreation; and,
(iii) marriage
provides the crucible for the socialization and raising of children.
C. Third Point: Any legislative initiative to equate
marriage between a man and a woman with a relationship between members of the
same-sex must carefully consider the implications that such a move will have on
the practise of religious freedom in Canada and be accompanied by strong legal
protections to ensure that:
(i) religions are not coerced, directly or
indirectly, to perform same-sex marriages;
(ii) federal law recognizes marriages performed
by religious institutions that do not perform same-sex marriages without the
need for registering such marriages in a common registry. The performance of the marriage by a
religious institution, without registration in a civil registry, should be
sufficient to attract federal recognition and the benefits of any laws that
extend benefits based on marital status;
(iii) amendments are made to the Canadian Human
Rights Code to protect the freedom of individuals to express their disagreement
with, or disapproval of, same-sex marriage; and
(iv) Parliament passes a “Freedom to Dissent
Act” which specifically provides that expressing disagreement with same-sex
marriage would not disentitle any person or institution from any benefit,
privilege or protection of the law.
·
a legal redefinition of marriage to
include same-sex couples is a radical proposal that will have profound
implications, especially on members of religious faiths who conceive of
marriage only as the union of a man and a woman.
·
there should be no illusion that the
advocacy of same-sex marriage simply seeks tolerance for the legal recognition
of another form of social relationship.
It is clear from the cases before the courts that what is sought is not
tolerance, but legal compulsion of acceptance of same-sex relationships by
persons who morally disapprove of such relationships.
·
if marriage is legally redefined to
include same-sex couples, three distinct challenges will be made in the
immediate future against those individuals and institutions that do not accept
the legitimacy of same-sex marriage:
(i) efforts will be made
to characterize the expression of moral disapproval of same-sex marriage as
“hate speech”;
(ii) legal challenges
will be made to religious institutions that fail to perform same-sex marriage
ceremonies; and,
(iii) at the same time,
efforts will be made to deprive religious institutions that refuse to perform
same-sex marriages of benefits of the law, such as charitable status and
exemption from municipal taxes.
Challengers will argue that it would be contrary to public policy to
extend legal privileges and benefits to religious institutions that engage in
discriminatory conduct.
·
any legislative program which might
accord legal recognition to same-sex unions must be accompanied by legislation
that protects religious institutions and individuals who do not regard same-sex
unions as equivalent to marriages between members of the opposite sex. At a minimum the following legal protections
would need to be enacted:
(i) federal legal
recognition of marriages performed by religious institutions that do not
perform same-sex marriages. Such
marriages should be recognized at law without the need for registering the
marriage in a civil registry; the performance of the marriage by a religious
institution should be sufficient to attract federal recognition and the
benefits of any laws which extend benefits based on marital status.
(ii) amendments to the
Canadian Human Rights Code to protect the freedom of individuals to express
their disagreement with, or disapproval of, same-sex marriage;
(iii) the passage by
Parliament of a “Freedom to Dissent Act” which specifically
provides that expressing disagreement with same-sex marriage would not
disentitle any person or institution from any benefit, privilege or protection
of the law.
II. DETAILED
ANALYSIS OF POINTS
A. First Point: Parliament
does not possess the constitutional jurisdiction to change the definition of
marriage in section 91(26) of the Constitution Act, 1867 to include
relationships between members of the same sex.
(i) The Basic Submission
1. Section 91(26)
of the Constitution Act, 1867 assigns to Parliament
the power to legislate with respect to all matters coming within the “class of
subject” described as “Marriage and Divorce”; the Constitution does not
assign to the courts the power to legislate with respect to marriage. The claims of the applicants in the three
same-sex marriage cases misconstrue this constitutional division of labour
between Parliament and the courts. For
all practical purposes, the applicants are asking the courts to direct the
federal and provincial governments to exercise their powers under ss. 91(26)
and 92(12) of the Constitution Act, 1867
in a way that recognizes same-sex marriages, arguing that the common law
meaning of “marriage” can be changed by the courts. In reality the applicants are not asking the courts to change the
common law; they are asking the courts to change the meaning of the word
“marriage” contained in two sections of the Constitution
Act, 1867. These cases therefore do
not involve the interpretation of the common law; they involve the
determination of the meaning of a constitutional term – “marriage”.
2. Political
jurisdiction over marriage was a hotly contested issue in the negotiations and
debates leading up to Confederation. As
a political compromise, jurisdiction over “marriage’ was carved out of
provincial jurisdiction over “property and civil rights” and constitutionally
assigned to Parliament. As a mater of
political judgment, marital relationships were assigned to Parliament, while
the provinces enjoyed legislative jurisdiction over all other social
relationships. History shows that this
division of responsibility was just as much a “compact of Confederation” as was
the political settlement over denominational education
3. The terms used in
the British North America Act, 1867 possessed
certain meanings that informed and guided this political division of the
“subject matters” of legislative powers between the federal and provincial
governments. As a result of the passage
of the BNA Act, the then common law meaning of “marriage” became the
meaning of a constitutional term and this meaning, in turn, defined and limited
constitutional assignment of the “class of subject” in respect of social
relationships. Put another way, the
constitutional assignment of jurisdiction between the federal and provincial
governments was predicated on the political understanding that Parliament
gained jurisdiction over “the union of a man and a woman” and the provinces had
jurisdiction over the civil rights associated with other non-marital social
relationships.
4. That the BNA Act
imported into the Constitution the meaning of “marriage” from the common law to
effect this political division of powers does not mean that the meaning of the
head of power, “Marriage” under section 91(26), and the scope of Parliament’s
legislative power thereunder, can be changed by the courts in the same way as
the courts can change the common law.
The constitutionally-granted “class of subject” of “Marriage and
Divorce” in respect of which Parliament can legislate cannot be changed by
common law. To do so would stand the
Constitution on its head, making the meaning of politically-negotiated,
constitutional terms, and the
allocation of legislative powers that they reflect, subject to changes
in the common law. A foundational
political act took place in 1867 when the subject-matter of “marriage” was
constitutionally assigned to Parliament.
This constitutional assignment of legislative jurisdiction can be
changed only by the process of constitutional amendment contained in section 38
of the Constitution Act, 1982, and not by a decision of the courts.
5. As a consequence of
the political allocation of legislative responsibility over social
relationships under sections 91 and 92 of the Constitution Act, 1867,
Parliament is limited to legislating under that head of power with respect to
the “class of subject” that is a union between a man and a woman; section
91(26) does not authorize Parliament to legislate with respect to unions
between members of the same sex. Those
social relationships, and other non-marital social relationships, do not fall
within the “class of subject” that is “marriage”; they fall under provincial
jurisdiction under “Property and Civil Rights”. Similarly, under s. 92(12) a province can only solemnize marriages
between men and women; a province does not possess the constitutional power to
solemnize ‘marriages’ between members of the same-sex. In short, the impediment to the claims by
the applicants in the same-sex marriage cases for the legal recognition of
marriage between same-sex couples does not lie in federal or provincial
legislation or common law, but in the language of the Constitution itself that
reflects an allocation of legislative powers over different social
relationships.
6. While provincial
legislatures possess the power to legislate with respect to the benefits or
obligations of relationships between members of the same sex or any other
non-marital economically interdependent relationship, provincial legislatures
could not do so under the heads of power dealing with “marriage”.
(ii) The Meaning of
‘Marriage’ in ss. 91 and 92 of the Constitution
Act, 1867
7. What is the meaning
of the word “Marriage” in section 91(26) of the Constitution
Act, 1867 which determines the subject-matter in respect of which
Parliament may legislate in respect “to all Matters”? Extracts from the Confederation debates leading up to the passage
of the British North America Act make it clear that
when the drafters of the Constitution used the word “marriage”, they used the
word “marriage” as meaning the union of a man and a woman:
March 6, 2022: Hon. Attorney General Cartier: “It would be proved before Parliament that
the marriage contracted under these circumstances is null as regards the Canon
law and the law of Lower Canada. There
are ecclesiastical authorities in Upper Canada just as there are in Lower
Canada, but as the Civil law there is not the same as it is here, the couple
whose marriage would be void under the Canon law but not under the Civil law – for in the eyes of the law the marriage
would be valid and binding, and neither husband nor wife could remarry without
having obtained a divorce – the couple, I say, would have the right of applying
to Parliament, who might legally declare that marriage null which had been so
declared by the ecclesiastical authorities.” (Debates, p. 692)
During the Confederation Debates ‘marriage’ was clearly understood
to mean the union between a man and a woman.
The judgments of the Ontario Divisional Court accepted this fact.
8. Two legal decisions
rendered close to Confederation confirm that at that time the word “marriage”
meant the union of a man and a woman.
In 1866, just one year before it voted to pass the British
North America Act, the English House of Lords decided the case of Hyde v. Hyde, in which Lord Penzance
stated that marriage can be defined as the “voluntary union for life of one man
and one woman, to the exclusion of all others”.
9. One week after Confederation, on July
9, 1867, Mr. Justice Monk of the Quebec Superior Court issued a decision in
which he defined marriage as the union of a man and woman:
“Before, however, proceeding any further, it may be well to state
some general principles applicable to the law of marriage…
By the law of
nature, a man and a woman, without religion or law, have the right, it is said,
to form a union upon such conditions as they may choose to impose. By the law of nations, all communities which
observe that law, have agreed to recognize as husband and wife persons of the opposite
sexes, who in their union have observed and fulfilled all the laws in force
relative to matrimony, in the country which they inhabit or where the union is
formed; and by the Civil law, each nation has established certain formalities
upon the observance of which the validity of marriage depends.”
10. While the Ontario Divisional Court
accepted that in 1867 the word “marriage” meant a union between a man and a
woman, it rejected the submission that the word “Marriage” in
section 91(26) of the Constitution Act, 1867
confines the “class of subject” over which Parliament may legislate to unions
between men and women. Justice LaForme, with whom the other members of the panel
concurred on this point, stated:
“In my opinion the
Association's submission in this regard amounts to an attempt to freeze a
meaning that may have been understood by the framers of the constitution back
in 1867. Such a proposition is unsupportable in law”.
I would respectfully submit that the
Divisional Court erred in law in reaching this conclusion and I will deal, in
turn, with each reason advanced by the Divisional Court to support its
conclusion.
(iii) First Divisional Court Reason: Since the Constitution is a “living tree”,
the meaning of its terms may change over time, as decided by the courts.
11. Viscount Sankey’s
famous dictum in the Edwards case that the Constitution is “a living tree capable of growth and
expansion within its natural limits” has attained mythical status, viewed by
some as empowering courts to change the meaning of the Constitution Act as
they see fit. There are two problems
with the myth. First, it ignores what
Viscount Sankey actually said – there are “natural limits” to judicial
interpretation of the Constitution, with one of those limits
being the plain meaning of the language contained in the Constitution.
12. Second, the myth
ignores how Viscount Sankey actually interpreted the Constitution
Act in the Edwards case. At issue in Edwards was
a reference by the Government of Canada to the Supreme Court of Canada to
determine whether the words “qualified persons” in section 24 of the Constitution Act, 1867 dealing with the
appointment of Senators included women.
The Supreme Court of Canada answered in the negative; the Privy Council
reversed. The reasoning of the Privy
Council is summarized at the end of the decision where Sankey, L.C. stated that
having regard:
“(1) To the object of the [British North
America] Act, viz., to provide a constitution for Canada, a responsible and
developing State;
(2) That the word ‘person’ is ambiguous
and may include members of either sex;
(3) That there are sections in the Act
above referred to which show that in some cases the word ‘person’ must include
females;
(4) That in some sections the words
‘male persons’ is expressly used when it is desired to confine the matter in
issue to males, and
(5) To the provisions
of the Interpretation Act;
their Lordships
have come to the conclusion that the word ‘persons’ in s. 24 includes members
both of the male and female sex and that, therefore, the question propounded by
the Governor-General must be answered in the affirmative and that women are
eligible to be summoned to and become members of the Senate of Canada, and they
will humbly advise His Majesty accordingly.”
13. The ratio of Lord
Sankey’s decision rests upon an examination of the meaning of the word
'persons’ as used in the text of the Constitution
Act, 1867. In the course of his
judgment Lord Sankey stated:
“ The word [persons] is ambiguous and in
its original meaning would
undoubtedly embrace members of either sex.” (at 104) (emphasis added)
“ As already pointed out, ‘persons’ is
not confined to members of the male sex…” (at 109)
“ From Confederation
to date both the Dominion Parliament and the provincial legislatures have
interpreted the word ‘persons’ in ss. 41 and 84 of the B.N.A. Act as
including female persons and have legislated either for the inclusion or
exclusion of women from the class of persons entitled to vote and to sit in the
Parliament and legislature respectively, and this interpretation has never been
questioned…
Neither is it without interest to record that when upon May 20,
1867, the Representation of the People Bill came before a committee of the
House of Commons, John Stuart Mill moved an amendment to secure women’s
suffrage and the amendment proposed was to leave out the word ‘man’ in order to
insert the word ‘person’ instead thereof…”
14. An actual reading of
the Edwards case reveals that the
Privy Council decided the case not by going outside of the text of the B.N.A. Act, but by staying within the
“natural limits” of the written text to conclude that the Constitution, when
read as a whole, uses the word ‘persons’ to include women. This reasoning simply provides no support
for the Divisional Court’s conclusion that the meaning of the word “marriage”
in the Constitution can be changed by the courts by using the “living
tree” metaphor. The word ‘marriage’ in
its “original meaning” in Anglo-Canadian jurisprudence never included same-sex
couples, and no other part of the Constitution of Canada uses the word
‘marriage’ in a way which includes couples of the same sex.
15. This is not to say
that Parliament or the legislatures are limited to legislating in respect of
those things in existence at the time of Confederation. It is well established that heads of power
described by general language can include things that as the result of
technological invention have come into existence since Confederation: for example, “undertakings connecting the
provinces with any other or others of the provinces” in section 92(1)(a) has
been held to include an inter-provincial telephone system. But Parliament is limited to legislating
with respect to matters that fall within the meaning of an enumerated head of
power. In the 1949 Alberta Bill of Rights case the Privy Council was required to
consider whether certain loan operations by a bank fell within the term
“banking” used in s. 91(15). The Privy
Council stated: “The question is not
what was the extent and kind of business actually carried on by banks in Canada
in 1867, but what is the meaning of the
term itself in the Act…The concept of banking certainly includes the
granting of credit by banks…” Thus,
while banks could develop specific new activities, whether those activities
constituted “banking” within the meaning of section 91(15) depended on the more
accepted, general meaning of the term.
(iv) Second Divisional
Court Reason: Section 91 does not
entrench a “particular set of rules”, but confers jurisdiction to make rules
16. Justice LaForme wrote that section
91(26),
“merely sets out a
head of power and there is no definition to either term, although in 1867 there
no doubt was an understanding of what the word meant. The purpose of
section 91 was not to entrench a particular set of rules, but rather it was to
confer jurisdiction to make rules, including the jurisdiction to fix the
qualifying factors for and incidents of the status of
marriage. Given that "marriage" refers only to a topic or
"class of subjects" of potential legislation, it cannot contain an
internal frozen in time meaning that reflects the presumed framers' intent as
it may have been in 1867.”
17. This analysis is
flawed because it ignores the internal structure of sections 91 and 92 of the Constitution
Act, 1867. The purpose of sections
91 and 92 is to confer jurisdiction to make rules regarding subject matters
that possess a meaning, not to make rules with respect to subject matters that
have no limit on their meaning.
Sections 91 and 92 of the Constitution Act, 1867 impose an
internal limitation on each “class of subject”, otherwise one level of
government could expand its sphere of activity into that of another by simply
asserting that the meaning of a “class of subject” had changed. Canadian jurisprudence has not permitted
legislatures to engage in this kind of game.
Justice LaForme’s analysis confuses the “essence” of a legislative head
of power (or its “pith and substance”), with the “accidents” of the legislative
subject-matter (or its “incidental” aspects).
The evidence before the court below unequivocally demonstrated that the
essential meaning of marriage used in section 91(26) has been the union of a
man and a woman: or, as put Justice LaForme, “in 1867 there no doubt was an
understanding of what the word meant.” That is not to say that the
“accidents” of marriage have not changed through legislation over the years –
eg. age of consent, prohibited degrees of consanguinity, etc. While under section 91(26) Parliament may
legislate changes to those “accidents”, it cannot legislate changes to the
“essence” of that head of power, the union between a man and a woman.
(v) Third Divisional Court Reason: Since Parliament has changed the meaning of
“status Indian” under the Indian Act pursuant to section 91(24), it can change
the meaning of marriage.
18. This reason advanced
by Justice LaForme rests on an incorrect understanding of section 91(24)
of the Constitution Act and the history of the Indian
Act. As Dean Hogg has observed in his Constitutional Law of Canada,
the meaning of “Indian” in the Indian Act
is not co-terminous with the meaning of “Indian” under s. 91(24) of the Constitution Act, 1867; while all status
Indians under the Indian Act are “Indians” within the meaning of s. 91(24),
many persons of Indian blood and culture who are outside the statutory
definition are ‘Indians’ within the meaning of section 91(24). What is the “class of subject” of the
federal head of power in section 91(24)?
In the Canard case Justice Beetz wrote:
“The British North America Act, 1867…by
using the word "Indians" in s. 91(24), creates a racial
classification and refers to a racial group for whom it contemplates the
possibility of a special treatment. It does not define the expression
"Indian". This Parliament can do within constitutional limits by
using criteria suited to this purpose but among which it would not appear
unreasonable to count marriage and filiation and, unavoidably, intermarriages,
in the light of either Indian customs and values which, apparently were not
proven in Lavell, or of legislative history of which the Court could and did
take cognizance.”
The “essence” of the subject-matter
“Indian” is a racial classification, and under section 91(24) Parliament can
legislate in respect of member of that race.
19. The
1939 case of Re Eskimos the Supreme
Court of Canada was required to determine whether the term ‘Indians’ used
section 91(24) of the British North America Act, 1867, includes
Eskimo inhabitants of the province of Quebec.
In answering the question in the affirmative, the Supreme Court of
Canada drew on a large volume of historical documents from before and at the
time of Confederation to conclude that at the time of Confederation the term
‘Indian’ was employed by well established usage to include Eskimos. Cannon, J. viewed the inquiry as one into
“the exact meaning of the word ‘Indians’ at the time of Confederation.” Kerwin, J. stated:
“There are also a few other publications to which our attention has
been called where ‘Indians’ and ‘Esquimaux’ are differentiated but the majority
of authoritative publications, and
particularly those that one would expect to be in common use in 1867, adopt
the interpretation that the term ‘Indians’ includes all the aborigines of the
territory subsequently included in the Dominion…
That so soon after Confederation the position of Eskimos should be
treated in this manner is significant.
It not only more than counter-balances any reference made later as to
the Department’s attitude but, to my mind, is conclusive as to what was in the
minds of those responsible for the drafting of the Resolutions leading to the
passing of the British North America Act, at that time and shortly thereafter…
The weight of
opinion favours the construction which I have indicated is the proper one of
head 24 of section 91 of the British North America Act but the deciding factor, in my view, is the manner in which the subject was
considered in Canada and in England at or about the date of the passing of the
[British North America] Act.” (emphasis added)
20. Justice LaForme tried to distinguish the Re Eskimo case by confining its principles to
circumstances where the federal and provincial authorities contest jurisdiction
over a subject-matter, and not to cases where they agree that the federal
government has jurisdiction, as in the case of marriage. In my respectful view this is not a valid
distinction. The whole history of
Canadian constitutional jurisprudence is built upon courts ascertaining the
meaning of a head of power as a result of the contest between two levels of
government; where there is no dispute, there usually is no case and therefore
no need for the courts to wade into the interpretive fray.
21. The courts have also
clearly stated that the constitutional meaning of
the term ‘Indian’ cannot be changed by alterations to the definition of
‘Indian’ in the federal Indian Act. In R.
v. Grumbo, a 1997 decision of the
Saskatchewan Court of Appeal, the court had to consider whether a Métis was an
Indian within the meaning of section 12 of The
Natural Resources Transfer Agreement, a schedule to the Constitution Act, 1930, 20-21 George V.
c. 26 (U.K.), which by virtue of section 52(2)(b) of the Constitution Act, 1982 forms part of the Constitution of
Canada. In the course of his judgment
for the majority overruling a prior judgement of that court, Sherstobitoff,
J.A. stated:
“ It seems also
apparent that if the court had realized that it was interpreting a part of the
constitution when it interpreted s. 12 of The Natural Resources Transfer
Agreement, it would not have incorporated by reference, as it has done, as a
definition of the word “Indian” in that section, the definition of that word
found in an ordinary statute, the Indian Act (Canada). The result of this incorporation by
reference would be that Parliament is empowered to amend the constitution by
simply amending the definition of the word “Indian” in the Indian Act from time
to time as it has done. This cannot be
right. The constitution cannot be
amended by simple Act of Parliament.
Even The Natural Resources Transfer Agreement itself, by s. 26,
says that the agreement may be varied by agreement confirmed by concurrent
statutes of the Parliament of Canada and the Legislature of the province.”
(emphasis added)
22. I respectfully submit that Justice
LaForme therefore was incorrect in concluding that the “class of persons (i.e.
“Indians”) under s. 91(24) can, and has been changed by Parliament many times
since the time of Confederation”. While
it is true, as Justice LaForme pointed out, that for a period of time the Indian Act extended the benefits of registration to the
wives or widows of a person who was entitled to be registered as a “status”
Indian under the Indian Act,
that does not mean that Parliament was thereby declaring non-Indians to be
Indians under the Constitution. Under section 91 Parliament can legislate in
respect “to all Matters Coming within the Classes of Subject” enumerated in the
section. By extending the benefits of
registration to the wives of Indians, Parliament was legislating in respect of
a “matter” relating to Indians – i.e. the statutory benefits which their wives
could obtain under the Indian Act. This did not turn those wives into Indians
under the Constitution Act, it incidentally
extended certain statutory benefits to them because of their relationship with
“Indians”, the “class of subject” dealt with in section 91(24).
(vi) Fourth Divisional Court Reason: Since the circumstances under which divorce
has been available have changed over time, therefore the meaning of marriage
can be changed; and if the essential nature of marriage is frozen at its 1867
meaning, then women would still be subordinate to men.
23. Justice LaForme wrote:
“ If
the federal power over "Marriage and Divorce" were somehow limited by
an internal definition reflecting the understandings of 1867, I would venture
to say that there would exist a significant number of unlawful marriages in
Canada today. By way of example - as illustrated in the evidence and
materials filed - in 1867 a husband could only petition for divorce if his wife
committed adultery. That, may have been the understood definition of divorce in
1867, but it has since clearly undergone many and repeated legislative
changes.”
With respect,
Justice LaForme again confused the “incidents” of a subject-matter with its
“essence”. Divorce, in 1867, meant the
legal termination of a marriage, the union between a man and a woman. Divorce continues to bear the same meaning
today, for the essence of divorce remains the termination of the legal
relationship “marriage” between a man and a woman. It is true that the circumstances under which a marriage can be
terminated have changed over the years, but those circumstances represent the
“incidents” of the subject-matter, not its essence. Justice LaForme confused the two.
24. Justice LaForme similarly confused
“incidents” for “essence” when he wrote that:
“if it
indeed were the case that the essential nature of marriage was that as frozen
in 1867, it must now be accepted as having been overtaken by the passage of
time. By way of one example, the subordination of the wife in the
identity of the husband was absolutely central to the legal conception of
marriage in the 19th century Canada. That is obviously no longer a
view that is held by any right thinking person in Canada.”
The essential
meaning of “marriage” is the union of a man and a woman; what legal benefits or
obligations accompany marriage is a matter of “incidents”, and those incidents
certainly have changed over time.
However, the essential meaning has not.
(vi) Fifth Divisional Court Reason: The Charter must be brought to bear
and applied to any judicial interpretation of s. 91(26).
25. The final reason given by Justice LaForme
for rejecting the Association’s argument was as follows: “I believe that because the Charter is part
of the constitution, the Charter must be brought to bear and applied in any
judicial interpretation of s. 91(26).” In reaching this conclusion Justice LaForme
erred in law by completely ignoring, and failing to deal with, the Supreme
Court jurisprudence since the Bill 30 case holding
that the Charter cannot be used to alter or cut down the powers granted
to legislatures under sections 91 and 92 of the Constitution
Act, 1867.
26. In the Bill 30 case, which dealt with
legislation by the Ontario Legislature to extend provincial funding to the
senior grades of Roman Catholic high schools, opponents of the legislation
asserted that the extension of funding would violate section 15(1) of the Charter because funding would only be
extended to schools of one religious group.
The Ontario government contended that its bill was immune from Charter scrutiny because it represented
an exercise by the province of its legislative powers under section 93(1) of
the Constitution Act, 1867 with respect to denominational schools and
therefore was protected by section 29 of the Charter. The Supreme Court
of Canada accepted this position, but went on to consider what the result would
be if the bill could only be supported under the province’s general plenary
power with respect to education under the opening language of section 93. Madame Justice Wilson wrote:
“ This does not mean,
however, that such rights or privileges are vulnerable to attack under ss. 2(a)
and 15 of the Charter. I have indicated
that the rights or privileges protected by s. 93(1) are immune from Charter
review under s. 29 of the Charter. I
think this is clear. What is less clear
is whether s.29 of the Charter was required in order to achieve that result. In my view, it was not. I believe it was put there simply to
emphasize that the special treatment guaranteed by the constitution to
denominational, separate or dissentient schools, even if it sits uncomfortably
with the concept of equality embodied in the Charter because not available to
other schools, is nevertheless not impaired by the Charter. It was
never intended, in my opinion, that the Charter could be used to invalidate
other provisions of the Constitution, particularly a provision such as s. 93
which represented a fundamental part of the Confederation compromise…(emphasis
added)
Of a
panel of seven judges, four others adopted this approach of Wilson, J.
27. The relationship
between the Charter and the rest of
the Constitution was considered again by the Supreme Court of Canada in the Nova Scotia Speaker’s case in which a
television company sought to review a decision by the Speaker of the Nova
Scotia House of Assembly prohibiting the broadcasting of proceedings of the
House. The Supreme Court of Canada
upheld the Speaker’s decision and applied the principles set out in the Bill 30 case. McLachlin J. stated:
“It is a basic
rule, not disputed in this case, that one part of the Constitution cannot be
abrogated or diminished by another part of the Constitution: Reference
re Bill 30, An Act to amend the Education Act (Ont.), [1987] 1 S.C.R.
1148…(p. 373)
To put it another way, the province’s constitutional
power to provide for separate education gave it the constitutional right to
discriminate between groups. To deny that power on the ground that it
infringed the Charter would be to diminish or abrogate the very power which the
Constitution conferred on the province.
This the Charter cannot do…(p. 392)
In this case, the issue is not the fruit of the constitutional tree
(the exercise of a power), but the tree itself (the existence of the power)…. The issue is – indeed the issue can only be – whether the Assembly has
a constitutional power to exclude strangers from its deliberations. If this Court were to rule that the Assembly
could not to do this, this Court would be taking away a constitutional power
possessed by the Assembly. At issue, in
other words, is the constitutional “tree” itself, rather than the fruit of the
tree. It is therefore no answer to a
claim for constitutional privilege to say that it constitutes the mere exercise
of a constitutional power.” (pp. 392-393) (emphasis added)
28. In the language of the Nova Scotia Speaker’s case, does
Parliament have a constitutional power to exclude same-sex couples from the
definition of “marriage”, or the constitutional power to discriminate between
groups in respect to marriage? It does
because the constitutional power possessed by Parliament under s. 91(26) of the
Constitution Act, 1867 only permits
it to legislate in respect of a union between a man and a woman – that is the
“constitutional tree” or “compact of Confederation” enshrined in s. 91(26)
which cannot be abrogated or diminished by the Charter. It therefore
follows that the provinces, under their head of power in s. 92(12), can only
solemnize marriages between men and women.
The constitutional allocation of legislative powers between Parliament
and the provinces over social relationships cannot be altered by the court
changing the meaning of a head of power under section 91 or 92, for that would
involve changing the “constitutional tree”.
While a term such as “marriage” that constitutionally assigns
legislative powers between the levels of government certainly can be
“reformulated” or its meaning changed, the process which must be used is that
contained in the amending formula for the Constitution set out in section 38 of
the Constitution Act, 1982 because any such change would alter the
allocation of legislative powers between the federal and provincial governments. A court does not possess the jurisdiction to
make such a change, nor does Parliament acting unilaterally without first
securing the appropriate constitutional amendment.
29. It is important to
emphasize again that I am not asserting that provincial legislatures lack the
power to legislate with respect to the appropriate benefits/obligations of
same-sex or other non-marital economically interdependent couples; they simply
lack the power to do so under the legislative heads of power dealing with
“marriage”.
B. Second Point:
Marriage serves the needs of contemporary Canadian society and the
definition of marriage as the union of a man and a woman does not discriminate
against same-sex couples in any way that infringes section 15 of the Charter.
30. As the Supreme Court
of Canada has held in Law v. Canada [1997] 1 S.C.R. 497, a legal
distinction based on an enumerated or analogous ground under section 15 of the
Charter does not violate section 15 unless it is found that the distinction is
“discriminatory” (the so-called “Law test”). A legal distinction based on stereotypes will be found to be
discriminatory; a legal distinction based on actual differences or capacities
will not. This is well established in
the Supreme Court’s jurisprudence.
31. Thus, the real legal question at stake in
the same-sex marriage debate is as follows:
does the constitutional definition of marriage as the union of a man and
a woman rest on stereotypical differences or actual differences. I submit that it is based on actual
differences, ones related to capacity and which do not reflect stereotypes.
32. Marriage between a man and a woman
differs from a relationship between two members of the same-sex. Marriage, as a social institution,
recognizes and rests on this difference.
33. Marriage, as the union of a man and a
woman, is a unique social institution.
It is also an institution that is unique in ability to meet the needs of
contemporary Canadian society in a way that no other social institution or
relationship can. This is not to say
that other relationships between persons, whether they be non-sexual
relationships between members of opposite sexes or sexual relationships between
members of the same-sex lack strong emotional bonds or patterns of financial
dependence. However, such relationships
do not serve Canadian society in the unique way that marriage does.
34. Society’s need to
promote marriage – the one unique union that complements nature with culture
for the sake of the intergenerational cycle – has not changed. In striking down the common law definition
of marriage as violating section 15(1) of the Charter it was a common
theme of the judgments in the Ontario Divisional Court that the common law must
evolve to reflect “contemporary social reality”, that that the role of the
courts under the common law is to “determine existing needs and values of
society” and that the common law cannot “isolate itself from the dictates and
reality of modern society.” Each judge agreed that the existing
definition of marriage no longer served “contemporary social reality” because
it did not grant some form of legal recognition to same-sex relationships. With all due respect, the Ontario court
erred in reaching this conclusion and, in so doing, failed to engage in a
proper contextual analysis which forms the third-step of the Law approach
to section 15 claims. In particular,
the Ontario Divisional Court erred in failing to find that the legal
distinction arising from defining marriage as the union of a man and a woman
issue takes into account “actual needs, capacity or circumstances”
and is objectively justifiable.
35. Marriage,
historically understood, satisfies the “existing needs and value of society” to
promote a union that complements nature with culture for the sake of the
intergenerational cycle. In so doing,
marriage is not isolated from the realities of modern society, but continues to
reflect and respond to primary needs of our “contemporary social reality”. Humans continue to be a species populated by
males and females (or in the words of the anthropologists, a “sexually
dimorphic” species), and this characteristic of humans continues to be a key
social reality of contemporary Canadian society.
36. Marriage “complements nature with culture
for the sake of the intergenerational cycle“ in three defining ways:
(i) marriage promotes the long-term
co-operation between men and women;
(ii) marriage
perpetuates humanity through procreation; and,
(iii) marriage provides the crucible for the
socialization and raising of children.
These defining characteristics of heterosexual marriage are as
necessary to meeting the needs of our contemporary social reality as they were
in the past. Marriage as the union of a
man and a woman is the only social institution that is oriented to meeting
these crucial needs of society. This is
a key distinction that sets marriage apart from same-sex unions within the
section 15(1) purposive and contextual analysis. The union of a man and a woman acts to satisfy these needs of
society in a way non-marital relationships, including same-sex relationships,
are unable to do.
37. Both Justices Blair
and Justice LaForme of the Ontario Divisional Court attempted to reduce the
historic conception of the “principal rationale”, or defining characteristic,
of marriage to one thing: in the case of Justice Blair, the procreation of
children “through heterosexual coupling”; in the case of Justice LaForme, the
purpose of “companionship”. Those findings misconstrued the evidence
before the court below about the purposes of marriage and thereby narrowed the
historic understanding of the defining characteristics of marriage. Those characteristics are broader and richer
than were conceived by the court below.
In identifying the universal features of marriage, Professor Katherine
Young deposed as follows in the Ontario “same-sex marriage” case:
“Marriage is supported by authority and incentives; it recognizes
the interdependence of maleness and femaleness; it has a public dimension; it
defines eligible partners; it encourages procreation under specific conditions;
and it provides mutual support not only between men and women but also between
men and women and their children (the sharing of resources, apart from anything
else, or transmission of property).”
38. In his affidavit in
the Ontario, David Coolidge observed that the “sexuality” of the human race
“means the reality that all human beings are embodied as male or female:
different, yet designed to complement one another”. Marriage, he argues, has been the unique social institution that “embodies and
governs sexual community”. While
marriage is characterized by the biological as exemplified in the act of sexual
intercourse, it also includes a strong cultural dimension providing the context
for social relationships between men and women as well as the context for the
socialization of children in respect to their development, including their
development in the area of gender identity.
(i) Marriage serves the
continuing need of Canadian society for a cultural institution oriented towards
encouraging co-operation between the sexes.
39. Marriage is a form of
life geared toward managing sexual difference.
As put by David Coolidge:
“What is the
purpose of this sexual ‘complementarity’…?
I believe sexuality is meant to unite those different from, yet designed
for, each other – males and females. It
is the primordial dynamic of human society, the drive for ‘community’ at its
most basic level…
Sexual intercourse between a man and a woman exemplifies the purpose
of sexuality: In this act, two people can simultaneously unite their entire
persons into a dynamic sexual community…”
Coolidge then points out the uniqueness
of this sexual dynamic between a man and a woman:
“No other form
of sexual activity can provide this total union. For this reason, same-sex ‘intercourse’ is different than
male-female intercourse, because it does not exemplify the reality of sexual
complementarity. The bodies of same-sex
partners do not complement one another or bring forth new life. This is no small thing, because a person’s
body is intrinsic to his or her existence.
The idea of splitting sexuality into ‘parts’ – for instance, procreation,
partnership, and pleasure – and then separating those parts in practice is
inimical to a pluralist view of sexual wholeness”
Coolidge concludes:
“…marriage can be defined as total
sexual community. The institution of
marriage is the social structure which embodies and governs that community…
Marriage is
therefore the most basic institution of society. Society depends upon men and women who make total commitments,
give fully of themselves, nourish intimacy, and gift the world with children.”
40. Professor Katherine
Young also points to the need for a cultural institution reflecting the
complementarity of men and women when she deposes that “[b]ecause male and
female bodies are biologically different from each other in at least a few
important ways, even though it may sound counterintuitive, the fact is that a massive cultural effort is
needed to bind them together, on an enduring basis, for the collective good.”. Consequently, some of the universal features
of marriage that she found as a result of her comparative studies included the
recognition of the interdependence of maleness and femaleness, its public
dimension, its definition of eligible partners and the mutual support it
provided between men and women. In sum, a key defining characteristic of
marriage is that it supports the bonding of men and women and the process of
living together notwithstanding their sexual differences.
41. The Ontario
Divisional Court ignored this distinctive characteristic of marriage based upon
the complementarity of the sexes.
Instead, that court watered-down this characteristic from one of
supporting the relationships between the sexes to simply supporting any
long-term committed relationship or “companionship”.
Although companionship may be an ancillary effect of marriage, LaForme J.’s
finding is not supported by the historical record – marriage was not an
institution intended to support long-term committed relationships or
companionship “per se”; it served as a cultural institution to unite members of
the opposite sex in a monogamous and committed “dynamic sexual community”
reflecting the sexuality of males and females and their natural complementarity
of design. To use the vernacular, men
and women were made for each other and in marriage they came together into one
and thereby fulfilled their natural purpose and design.
42. Coolidge warned
against splitting sexuality into its parts, and instead argued that marriage
reflects a holistic view of human sexuality.
In its recent decision in Attorney General (Nova Scotia) v. Walsh
the Supreme Court of Canada cautioned courts against conducting a section 15
analysis which relied solely on a “functional” comparison between two groups
without taking into account the “full range of traits, history and
circumstances”. I would respectfully say that the Ontario
Divisional Court fell squarely into this trap of trying to reduce the
comparative analysis down to one of functional similarity, instead of
considering the defining characteristics of marriage in the broader context of
its “full range of traits, history and circumstances”. By ignoring the sexual complementarity upon
which marriage is based the Divisional Court radically departed from the
long-standing legal view that the capacity for heterosexual intercourse is an
essential characteristic of marriage.
As stated by Ormrod, J. in Corbett
v. Corbett:
… sex is clearly an
essential determinant of the relationship called marriage, because it is and
always has been recognised as the union of 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.
(ii) Marriage
serves the continuing societal need for a cultural institution dedicated to the
perpetuation of humanity
43. It is a truism that
any society requires the regeneration of its population to survive and
flourish. Canada is no different: such
a need exists today just as it has throughout the history of Canada. Marriage has served as the cultural
institution dedicated to creating the conditions in which Canadian society is
perpetuated. The Ontario Divisional
Court did not disagree with this fact, but it minimized the importance of the
fact by contending that the presence of artificial means of conception no
longer means that procreation is a defining characteristic of marriage. Justice Blair contended that “procreation
through heterosexual coupling, as the source of the “reality” of children being
born into a family, and therefore as the characteristic giving marriage its
principal rationale and unique heterosexual nature, is becoming an increasingly
narrow and shaky footing for the institution of marriage.” Why?
Because, he wrote, that in view of modern medical technology the
production of children “is presently attainable through means other than
heterosexual intercourse.” The
Association submits that this reasoning is deeply flawed.
44. However, demographic
statistics continue to show that marriage remains the most stable unit for
family formation. In Egan Justice LaForest observed
that the family unit based on father, mother and child “is the only unit in
society that expends resources to care for children on a routine and sustained
basis.” Public policy should be based on the norm
and not the exception, and procreation within marriage has been and continues
to be the norm. Contemporary Canadian
society continues to need such a social unit.
As put by Professor Young:
“Marriage has
never been defined merely as one context for producing or rearing children,
both of which can occur – and often do – without marriage. Marriage has always been defined as the ideal
context for producing and rearing children. That is because marriage, at least in theory, provides them with
parents of both sexes on an intimate and enduring basis (although it does not
always work out this way due to death, divorce or abandonment).
45. Second, the overwhelming number of
children are conceived naturally.
Justice Blair’s contention that because some children are now conceived
by artificial means, procreation through sexual intercourse no longer constitutes
a defining characteristic of marriage simply ignores the predominant reality,
and therefore a continuing need, of Canadian society.
46. Third, Justice Blair
unilaterally shifts one of the principal purposes of marriage from procreation
to the raising of children. While such
a shift is necessary in order for Justice Blair to be able to conclude that
“marriage is more fully characterized…by its pivotal child-rearing role”,
where is the evidence in the record to justify a finding that Canadian society
no longer recognizes the creation of children as a principal purpose of
marriage? There is none.
47. If child-raising is a
principal purpose of marriage, then a priori, procreation, as its
antecedent cause, must also be a principal purpose, otherwise public policy is
inverting the pyramid and giving priority to the effect over the cause. This is illogical. Child-raising is an effect or consequence of procreation. In the absence of a Brave New World where
test tubes replace human acts, the act of intercourse resulting in procreation
remains the overwhelmingly predominant way in which Canadian society
replenishes itself. The common law must
continue to meet this need of Canadian society by supporting “the only unit in
society that expends resources to care for children on a routine and sustained
basis”, and the court below erred in ignoring this need.
(iii) The
Need for an Institution To Support the Socialization and Rearing of Children
48. While the Ontario
Divisional Court acknowledged that child-rearing constitutes one of the
principal purposes of marriage, Canadian society needs an institution that will
socialize and rear children in light of the fact that it is characterized by
males and females. When discussing in
his affidavit the sexual community of men and women, David Coolidge put the
matter this way:
“Sexuality
involves socialization. This cultural
dynamic affects the development of gender identity in children. The patterns of gender formation differ
between boys and girls, based on separation from or identification with their
mothers. In order to avoid either
misogyny or passivity, children need mothers and fathers, regardless of their
parents’ specific gender roles.”
49. In the Ontario
lawsuit Professor Craig Hart deposed that there is a body of scientific
evidence indicating that "natural family" structures which include
married mothers and fathers living under the same roof are more likely to
provide more stable and secure environments for children to flourish in. Research has documented that natural family
structures benefit nearly every aspect of children's well being, including
greater educational opportunities, better emotional and physical health, less
substance abuse, lower incidences of early sexual activity for girls, and less
delinquency for boys.
50. According to
Professor Hart, other studies indicate that fathers and mothers contribute to
child development in ways that are different from, yet complementary to, one
another. For example, evidence
indicates that the most important factor that is more relevant than family
income for diminishing delinquent behaviour is the presence of the father in
the home. In fact, data shows that
delinquency is twice as high in cases where the father is absent than when he
is present. Other recent supporting
research suggests that even after taking into account a wide variety of
factors, including race, income, residential instability, urban location, and
so forth, fatherless boys were still found to be twice as likely to be
incarcerated as boys in a two parent, father present home.
51. Research provides
other examples of this parenting complementarity. A significant body of research indicates that fathers are more
oriented towards being physically playful with their children than mothers;
fathers eliciting more positive and less negative emotion from children during
play have been shown to help children learn to read social cues and regulate
their emotions in ways that can result in more positive social adjustment with
peers. Greater playfulness, patience
and understanding with children on the part of fathers was associated with less
child aggressive behaviour with peers at school. Father effects outweighed mother effects in
this regard, again illustrating relatively, stronger father influence in the
playful domain of parent-child interaction.
A father’s presence also can provide daughters with a stable
relationship with a non-exploitive adult male who loves and respects them. Security and trust derived from this
relationship helps girls avoid precocious sexual activity and exploitive
relationships with other males. In
light of the data at hand many scholars have concluded that fathers contribute
to core aspects of children's stability, self-confidence, self-regulation and
self-identity.
52. In other domains of
parent-child interaction, mothers seem to matter more. There is evidence of stronger mother effects
for children's pro-social behaviour relative to fathers in the domain of
reasoning with children about consequences for their actions, and that children
who had more reasoning-oriented mothers engaged in more pro-social, cooperative
play with peers. They were also more
accepted by peers.
53. Taken together, these
findings suggest that mothers and fathers do indeed make unique contributions
to children’s development. In his
affidavit, Dr. Hart opined:
… both mothers and fathers play vital
roles in the healthy development of children.
Same sex marriages (and partnerships) simply cannot possess the
gender-based complementary quality of the heterosexual marriage union. The heterosexual marriage union holds the
greatest potential for optimum child development due to the complementarity of
mothering and fathering occurring together in an explicitly committed
relationship.
54. People who are not married and occupy
non-traditional relationships endeavour to raise the children in their care
properly and lovingly, and there are differing views as to the probabilities of
achieving socially important goals in traditional and non-traditional relational
settings. However, the evidence
submitted does suggest that the traditional institution of marriage has real
life virtues and benefits that address needs of contemporary Canadian society
and that these benefits should not be disturbed or obscured by changing the
institution’s core definition.
III. Third Point: Any legislative initiative to equate
marriage between a man and a woman with a relationship between members of the
Any legislative initiative to equate marriage between a man and a woman with a
relationship between members of the same-sex must carefully consider the
implications that such a move will have on the practise of religious freedom in
Canada and be accompanied by strong legal protections to ensure that:
(i) religions are not coerced, directly or
indirectly, to perform same-sex marriages;
(ii) federal law recognizes marriages performed
by religious institutions that do not perform same-sex marriages without the
need for registering such marriages in a common registry. The performance of the marriage by a
religious institution, without registration in a civil registry, should be
sufficient to attract federal recognition and the benefits of any laws that
extend benefits based on marital status;
(iii) amendments are made to the Canadian Human
Rights Code to protect the freedom of individuals to express their disagreement
with, or disapproval of, same-sex marriage; and
(iv) Parliament passes a “Freedom to Dissent
Act” which specifically provides that expressing disagreement with same-sex
marriage would not disentitle any person or institution from any benefit,
privilege or protection of the law.
54. A legal redefinition of marriage to include same-sex couples
is a radical proposal that will have profound implications, especially one members
of religious faiths who conceive of marriage only as the union of a man and a
woman. Any such redefinition would constitute the replacement of
the existing conception of marriage with another conception which is
fundamentally at odds with it and at odds with the beliefs of many
religious adherents.
55. There should be no illusion that the advocacy of same-sex
marriage simply seeks tolerance for the legal recognition of another form of
social relationship. It is clear from
the cases before the courts that what is sought is not tolerance, but
acceptance of same-sex relationships by persons who morally disapprove of such
relationships. Perhaps the best
illustration of this point can be found in the Hall v. Powers case,
where a gay high school student sought, and obtained, court approval to bring
his boyfriend to his graduation prom.
The court described the position advanced on behalf of Mr. Hall as
follows:
“Counsel for Mr. Hall argues that
one’s right to be protected from discrimination means the right to be
different, to be accepted as different, and to have equality of treatment that embraces
and honours that difference.”
56. If same-sex marriage is legalized, I have no doubt that a
movement will start, before the legislatures, human rights tribunals and
courts, to ensure that the law, in all its aspects, embraces and honour
same-sex marriage and that all benefits and privileges of the law are only
extended to those who embrace and honour same-sex marriage. Those who do not embrace and honour same-sex
marriage will be characterized as engaging in discriminatory conduct. It will be argued that Canadian public
policy should not extend any legal benefits to those engaged in discriminatory
conduct. It will be argued that those
who do not embrace and honour same-sex marriage should be denied the benefits
of the law, for if they are allowed to continue to enjoy the benefit of the
law, then, so the argument will run, the law will be sanctioning discriminatory
conduct.
57. If some accuse me of fear-mongering in raising this issue, I
need turn no further than a very recent (2002) decision of the Supreme Court of
Canada to demonstrate that the court is presently confronting exactly such
arguments. In the recent Supreme Court
of Canada case involving the use of books about same-sex families in
Kindergarten classes, Chamberlain v. Surrey School Board, Justice
Gonthier, in his minority decision with Justice Bastarache, clearly pointed out
the dangerous use that is being made of equality and non-discrimination arguments. In his reasons he wrote as follows:
“Adults
in Canadian society who think that homosexual behaviour is immoral can still be
staunchly committed to non-discrimination. In the case at bar, there
is, in my view, no evidence that the parents who felt that the Three Books were
inappropriate for five- and six- year-old children fostered
discrimination against persons in any way. Many persons, religious
and not, justify this distinction by drawing a line, reflected in the passages above,
between beliefs held about persons and beliefs held about the conduct of
persons. (127)
If
many Canadians, as a result of deeply held religious or non-religious beliefs
or opinions, draw such a line and commit to such a distinction in their daily
lives, must the law obliterate it because of the allegation that acts of
discrimination against persons are born from the view held by some that certain
persons' conduct is immoral or inappropriate? Does a commitment to
eradicating the potential for future instances of discrimination require that
religious persons or others be forced to abandon their views regarding the
immorality of certain conduct? Can s. 15 can be used to eliminate
beliefs, whether popular or unpopular? In a society committed to
liberal values and robust pluralism, the answer to all of these questions must
be in the negative. (128)
Justice Gonthier continued:
“Beyond this, nothing in Vriend v. Alberta, [1998] 1 S.C.R.
493, or the existing s. 15 case law speaks to a constitutionally enforced
inability of Canadian citizens to morally disapprove of homosexual behaviour or
relationships: it is a feeble notion of pluralism that transforms
"tolerance" into "mandated approval or acceptance". In my view, the inherent dignity
of the individual not only survives such moral disapproval, but to insist on
the alternative risks treating another person in a manner inconsistent with
their human dignity: there is a potential for a collision of
dignities. Surely a person's s. 2(a) or s. 2(b) Charter right to
hold beliefs which disapprove of the conduct of others cannot be obliterated by
another person's s. 15 rights, just like a person's s. 15 rights cannot be
trumped by s. 2(a) or 2(b) rights. In such cases, there is a need
for reasonable accommodation or balancing. In my view, in the
context of this case, the decision reflects a constitutionally acceptable
balance.” [132]
Later, Justice Gonthier had this to
say:
“The
moral status of same-sex relationships is controversial: to say
otherwise is to ignore the reality of competing beliefs which led to this
case. This moral debate, however, is clearly distinct from the very
clear proposition that no persons are to be discriminated against on the basis
of sexual orientation. The appellants, using the courts, seek to
make this controversial moral issue uncontroversial by saying that s. 15 and
"Charter values" are required to eradicate moral beliefs, because the
hypothesis is that possible future acts of discrimination are likely to emanate
from such beliefs. This is not, however, necessarily true. As
discussed above, many persons are staunchly committed to the principle of
non-discrimination and the inherent dignity of all persons, and yet
concurrently hold views which disapprove of the conduct of some
persons. To permit the courts to wade into this debate risks seeing
s. 15 protection against discrimination based upon sexual orientation being
employed aggressively to trump s. 2(a) protection of the freedom of religion
and conscience, as well as s. 15 protection against discrimination based on
conscience, religious or otherwise. This would be a reading of the Charter that
is inconsistent with the case law of this Court, which does not permit a
hierarchy of rights, as well as inconsistent with the purpose of the Charter
itself.” [150]
58. If marriage is
legally redefined to include same-sex couples, I foresee that three distinct
challenges will be made in the immediate future against those individuals and
institutions that do not accept the legitimacy of same-sex marriage:
·
efforts will be made to characterize
the expression of moral disapproval of same-sex marriage as “hate speech”. Complaints will be brought before provincial
human rights tribunals to sanction those who express disapproval of same-sex
marriage. Clerics will be a particular
target of such complaints;
·
legal challenges will be made to
religious institutions that fail to perform same-sex marriage ceremonies. It will be argued that the failure to
perform such ceremonies is discriminatory, and efforts will be made to secure
court orders requiring all religious institutions to perform same-sex
marriages. The challengers will contend
that churches are agents of the state in solemnizing marriages under provincial
marriage legislation, and therefore the Charter extends to such religious
institutions when they perform wedding ceremonies;
·
at the same time, efforts will be made
to deprive religious institutions that refuse to perform same-sex marriages of
benefits of the law, such as charitable status and exemption from municipal
taxes. Challengers will argue that it
would be contrary to public policy to extend legal privileges and benefits to
religious institutions that engage in discriminatory conduct. Inevitably the challengers will rely on the
United States Supreme Court decision in Bob Jones University v. United
States, 461 U.S. 574 to contend that public funds should not be used to
subsidize discriminatory practices, even where it is asserted that those
discriminatory practices are founded on sincere religious beliefs. Indeed in the Hall v. Porter case
(the gay prom case), the motions court judge specifically relied on such a line
of argument.
59. Consequently,
any legislative program which might accord legal recognition to same-sex unions
must be accompanied by legislation that protects religious institutions and
individuals who do not regard same-sex unions as equivalent to marriages
between members of the opposite sex. I
think that the following legislative protections would be required:
·
federal legal recognition of marriages
performed by religious institutions that do not perform same-sex
marriages. Such marriages should be
recognized at law without the need for registering the marriage in a civil
registry; the performance of the
marriage by a religious institution should be sufficient to attract federal
recognition and the benefits of any laws which extend benefits based on marital
status.
·
amendments to the Canadian Human
Rights Code to protect the freedom of individuals to express their disagreement
with, or disapproval of, same-sex marriage;
·
the passage by Parliament of a
“Freedom to Dissent Act” which specifically provides that expressing
disagreement with same-sex marriage would not disentitle any person or
institution from any benefit, privilege or protection of the law.
DAVID MOSELEY BROWN
BIOGRAPHY
David Brown is a
partner in the Toronto office of Stikeman Elliott LLP and a member of its
Litigation and Energy Groups. Called to
the Bar of Ontario in 1983, his practice includes commercial and corporate
litigation, energy regulation, defamation and constitutional law. Mr. Brown has appeared before all levels of
court in Ontario and Manitoba and frequently before the Supreme Court of
Canada. He is listed in the 2003 LEXPERT/ALM Leading 500 Lawyers in Canada
as an expert in Electrical Energy, and has appeared before federal and
provincial energy regulators. Mr. Brown
has acted as counsel in constitutional cases dealing with religious freedom,
freedom of expression, division of powers over taxation, education, life
issues, and same-sex issues. He taught
trial advocacy at the Faculty of Law, Queen’s University from 1989 until 2002,
and will be teaching a course in Energy Law at Osgoode Hall Law School in 2004. Recent publications include: Energy Regulation in Ontario (2001,
Canada Law Book); “Freedom From or
Freedom For? Defining the Content of
Charter Rights: Religion as a Case
Study” (2000), 33 University of British Columbia Law Review 551; and “What
Can Lawyers Say in Public?” (1999), 78 Canadian Bar Review 283). B.A. (Hons.), University of Toronto (1976);
certificate, Beijing Languages Institute (1977); certificate, Nanjing
University (1978); J.D., University of Toronto (1981); currently enrolled in
Part-time LL.M, Osgoode Hall Law School. Executive Member, OBA Natural
Resources and Energy Section and International Transactions Committee, Energy
Bar Association; member, Canadian Bar Association, American Bar Association,
International Bar Association, and Advocates’ Society.