...For now

by Lisa C Fong

On July 8, 2003, Anthony Porcino and Tom Graff made history in British Columbia by being the first same-sex couple in the province to be legally married.

Their marriage ceremony took place right after the B.C. Court of Appeal decided to lift a suspension of the remedies which it granted in EGALE v. Canada (A.G.), 2003 BCCA 406. The Court found in its earlier ruling that a common law bar to same-sex marriage created by the common law definition of marriage was unconstitutional. To allow governments time to revise their legislation, it suspended its declaratory relief and its reformulation of the definition of marriage until July 12, 2004 (2003 BCCA 251).

That suspended relief was intended to coincide with the same relief granted by the Ontario Divisional Court in Halpern v. Canada (A.G.) (2002), 60 O.R. (3d) 321. But when the Ontario Court of Appeal overturned the Halpern suspension on June 10, 2003, the B.C. Court of Appeal agreed to vary the unentered order in EGALE by lifting the suspension, with the consent of the federal government and without opposition from the B.C. Government. Since these two decisions, hundreds of same-sex couples have married in B.C. and in Ontario.

The inability of same-sex couples to marry in Canada came under scrutiny as the result of separate court challenges to the legal definition of marriage in three provinces. The first of the three challenges seemingly failed in October 2001 when the B.C. Supreme Court decided in EGALE that marriage at common law meant a union of two persons of opposite sex, and that any infringement of Charter rights or freedoms could be justified.

Yet soon after, the Quebec Supreme Court decided in Hendricks v. Canada (A.G.), [2002] JQ No. 3816, that the opposite-sex definition of marriage in a federal statute was unconstitutional. The Quebec court gave the government 24 months to revise the legislation. Two months after that, in July 2002, the Ontario Divisional Court decided in Halpern that the opposite-sex definition of marriage at common law was constitutionally invalid and inoperative. The Divisional Court suspended its declaratory relief for 24 months to allow governments to revise their legislation.

The conflicting findings at the trial level now appear to be resolved, given the appellate rulings in both B.C. and Ontario. The federal government has not appealed the rulings in either province, and has withdrawn its appeal of the ruling in Quebec. Notwithstanding, the Association for Marriage and the Family in Ontario has sought leave to appeal Halpern to the Supreme Court of Canada, and the Ligue Catholique has appealed Hendricks to the Quebec Court of Appeal.

In light of the appellate rulings in B.C. and Ontario, the federal government has referred three questions to the Supreme Court of Canada on the federal power to legislate the definition of marriage, and on the constitutionality of the wording of a draft bill legislating marriage between “two persons in exclusion to all others,” B.C., Alberta, and Quebec have filed notices of intent to intervene in the reference.

While same-sex couples can now marry in B.C. and in Ontario, the future of that right remains uncertain. Will the opinion of the Supreme Court of Canada support the ability of the federal government to legislate same sex-marriage? If so, will the current draft bill be introduced to the House of Commons given the imminent change in the Liberal leadership? Or will the Liberal party under its new leader choose to advance an alternative approach? Will provinces assert the ‘notwithstanding’ clause under the Charter to protect provincial legislation preventing same sex-marriages? The answer to these questions and others will determine the fate of same sex-marriage in Canada.

Lisa C. Fong practises commercial and professional discipline litigation at Ng & Ariss. She is a member of the CBABC Equality Committee. The Equality Committee is dedicated to addressing equity issues in the law and in the legal profession.

This article was published in the October 2003 issue of BarTalk. © 2003 The Canadian Bar Association. All rights reserved.