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Egale Canada Inc. v. Canada (Attorney General)

May 01, 2003

Same-sex marriage is legalized in British Columbia

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.

Background

In May, 2003, the British Columbia Court of Appeal became the first provincial court of appeal in Canada to rule that gays and lesbians have a right to marry.

On October 2, 2001, the British Columbia Supreme Court 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 a court nor Parliament 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 court held that 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.

Read the court’s decision.

Egale Canada and five couples seeking the right to marry appealed the decision to the British Columbia Court of Appeal.

The B.C. Court of Appeal’s decision

The B.C. Court of Appeal granted the appeal and overturned the lower court decision.

The B.C. Court of Appeal largely agreed with the reasons of Justice LaForme in the Ontario Divisional Court’s July 2002 decision on the same issue. Justice LaForme had rejected the same “frozen in time” argument:

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 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.

While the Court concluded that denying equal marriage was discriminatory, it suspended its decision until July 2004, to give the federal and provincial governments time to review and revise legislation to make it consistent with the Court’s decision.

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

Subsequent events

In June 2003, the Ontario Court of Appeal also decided that same-sex couples should be able to marry. However, the Court of Appeal did not suspend its decision and couples in Ontario began marrying immediately.

Egale brought a motion to ask the B.C. Court of Appeal to lift its suspension so that couples in B.C. would not have to wait for another year to marry. The Court agreed and lifted the suspension in August 2003.

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

Practice Areas

Appeals & Judicial Review, Constitutional Law