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Egale Canada Inc. v. Canada (Attorney General)

May 01, 2003

The British Columbia Court of Appeal has become the first appellate court to find a right to same-sex marriage, concluding that denying same-sex couples the right to marry violates s. 15 of the Canadian Charter of Rights and Freedoms.

In May, 2003, the British Columbia Court of Appeal became the first provincial court of appeal in Canada to rule that denying gays and lesbians the right to marry violates their equality rights under s. 15 of the Charter .

On October 2, 2001, the British Columbia Supreme Court had dismissed applications brought by several same-sex couples seeking the right to marry. The Court gave alternative reasons for its decision. First, it reached the novel conclusion that the term “marriage” under s. 91(26) of the Constitution Act, 1867 could only mean a monogamous opposite-sex relationship because that is what it must have meant to the framers of the Constitution in 1867. Neither the courts under the Charter nor the federal government exercising its legislative power under the Constitution could alter that definition, the Court concluded. It was frozen in time and the only way to change it was by a constitutional amendment.

Second, the lower court held the common law definition of marriage (which it determined to be a “lawful and monogamous union of two persons of the opposite sex”) violated the equality rights of gays and lesbians under s. 15 of the Charter. However, it concluded that this limit on rights was reasonable under s. 1 of the Charter.

Egale Canada and five couples seeking the right to marry appealed the decision to the British Columbia Court of Appeal. In May 2003, the B.C. Court of Appeal granted the appeal and overturned the lower court decision.

In overturning the lower court decision, the B.C. Court of Appeal largely agreed with the reasons of Justice LaForme, then of the Ontario Divisional Court, in that Court’s July 2002 decision on the same issue, who held on the constitutional issue:

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. It must — as the authorities have proclaimed — be interpreted “as describing a subject for legislation, not a definite object.” Canadian courts have repeatedly declared that the language of the B.N.A. Act “must be given a large and liberal interpretation” recognizing “the magnitude of the subject with which it purports to deal in very few words”

The Court of Appeal also rejected the lower court’s conclusion that a ban on same-sex marriage was justified under s. 1 of the Charter, again largely for the reasons given by Justice LaForme in the Ontario case.

The Court of Appeal also rejected arguments by intervener religious groups that giving gays and lesbians the right to marry would mean that churches would be forced to perform marriage ceremonies against their will:

…[T]he equality rights of same-sex couples do not displace the rights of religious groups to refuse to solemnize same-sex marriages which do not accord with their religious beliefs. Similarly, the rights of religious groups to freely practise their religion cannot oust the rights of same-sex couples seeking equality, by insisting on maintaining the barriers in the way of that equality.

Read the B.C. Court of Appeal’s decision

Read the B.C. Court of Appeal’s supplementary decision to lift the suspension of its remedy.

Read the lower court’s decision

Lawyers

Cynthia Petersen

Practice Areas

Appeals & Judicial Review, Constitutional Law