Same-Sex Marriage: Remembering Halpern v. Canada
It is, in all likelihood, a coincidence that the anniversary of Halpern v. Canada (2002) comes on the heels of Toronto’s annual gay pride festival, but the timing is impeccable. On July 12, 2002, Justice LaForme, for a unanimous Ontario Superior Court of Justice, released a landmark decision that would pave the way towards gay marriage in Ontario and across North America. Nine years later, as Canada’s gay community continues its push for substantive equality, it is important to take a moment to remember the hurdles that have already been jumped – as New York celebrates its first same-sex marriage, this seems like as good a moment as any.
The case was spearheaded by two separate, yet analogous applications. The first came from eight same-sex couples that were denied marriage licences by the City of Toronto. The marriage licence applications were not technically rejected, but were “held in abeyance” by the Clerk, pending judicial direction. Roughly six months later, the second application was filed by the Metropolitan Community Church of Toronto (MCCT) in response to the Registrar of Ontario’s refusal to recognize the same-sex marriages previously solemnized by Reverend Brent Hawkes. Ultimately, the applicants’ claims were heard together, with Equality for Gays and Lesbians Everywhere (EGALE) intervening on their behalf.
Broadly speaking, the claims revolved around the fundamental proposition that the freedom to get married is “so central to Canada’s definition of humanity that a marriage ban against an entire class of people unavoidably implicates numerous Charter rights and freedoms.” The Applicant Couples made a number of submissions, including: (1) there is no statutory impediment to gay marriage; (2) there is no common law rule preventing gay marriage; and, (3) even if there were a common law rule against gay marriage, it would violate, at the very least, section 15 of the Canadian Charter of Rights and Freedoms.
In response, the Attorney General of Canada (AGC) argues that marriage is a unique institution that predates the creation of Canada’s legal framework. As such, a heterosexual definition of marriage was “absorbed” into Canadian common law as an historical social practice with a universal meaning. With respect to equality under the Charter, the AGC submits that there is no violation because this definition of marriage “does not treat persons differently based on personal characteristics.” Even if this common law rule excluding homosexuals from obtaining a marriage licence was found to violate some Charter right – specifically section 15 – the violation could easily be justified in a free and democratic society.
Justice LaForme begins his analysis by determining whether there is any sort of statutory impediment to the issuance of marriage certificates to same-sex couples. One thing is clear: the federal Parliament has the exclusive power, under section 91(26) of the Constitution to legislate with respect to one’s “capacity” to marry. Provincial jurisdiction, therefore, is restricted to the actual licencing or recognition of the marriage. This means that any binding statutory impediment to gay marriage would have to be federal legislation. The only federal legislation that even mentions the issue of capacity to marry is the Marriage Act, which aims to prevent one from marrying a close relative. Thus, Justice LaForme concludes that there is no statutory impediment to gay marriage. He does concede, however, that the original framers of the Constitution in 1867, the individuals who placed “Marriage and Divorce” under federal jurisdiction, likely intended marriage to constitute a heterosexual union. Unlike certain American judges, however, even the most conservative, modern-day Canadian judge views the Canadian Constitution, to a certain degree, as a living tree. Justice LaForme is no exception:
[I]f 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.
Next, Justice LaForme must decide whether or not there is a common law rule prohibiting the issuance of marriage licences to same-sex couples. To demonstrate that there is such a rule, the AGC points to a number of judicial “authorities” – in particular, the majority decision of the Divisional Court in the case of Layland v. Ontario (1993). In what LaForme describes as “the same circumstances,” the court considered the issue of marriage under Canadian common law. The majority, relying heavily on English caselaw, reached the following conclusion:
[U]nder the common law of Canada applicable to Ontario a valid marriage can take place only between a man and a woman, and that persons of the same sex do not have the capacity to marry one another.
As expected, the applicants submit that the so-called authorities relied upon by the AGC are “flawed and outdated,” not to mention the fact that they are not legally binding. Justice LaForme accepts that these decisions are not technically binding, as a court of superior jurisdiction did not render them; however, he believes that “they do articulate a persuasive expression of Canadian judicial opinion.” That is to say, Canadian courts, up until this point, have perceived the legal capacity to marry as limited to “one man and one woman.” This perception may not be unanimous, but it is of sufficient judicial prevalence to constitute a common law rule.
Having found that there is, in fact, a common law rule preventing gay marriage, the question then becomes: does this rule violate any of the constitutional protections afforded by the Charter? A number of Charter guarantees are considered, but equality under section 15 is, as Justice LaForme puts it, the “most directly engaged.” The applicants submit, somewhat simply, that this common law rule violates section 15 because it denies them a fundamental freedom on the basis of a personal characteristic. In an equally simplistic defence, the AGC submits that preserving an historical, opposite-sex definition of marriage does not necessarily undermine the “human dignity” of persons in other types of relationships. Thus, it is not actually discriminatory.
Before he even starts his section 15 analysis, Justice LaForme admits that his “preliminary and cursory view” is that any law preventing the issuance of marriage licenses to same-sex couples is, on an intuitive level, incompatible with the Charter’s equality guarantee. Having made this point clear, he proceeds with the test – as it existed at the time, of course. [The “test” for a section 15 claim has been altered slightly since 1992 – see Withler v. Canada (2011)].
1. The impugned law subjects the Applicants to differential treatment. That is, the law denies them equal benefit or equal protection: that it treats them differently as compared to other persons or groups.
2. The differential treatment is based on one or more of the enumerated or analogous grounds set out in s. 15(1).
3. The differential treatment operates in a substantive sense. That is, it imposes a burden upon, or withholds a benefit from, the Applicants.
With respect to the first portion of the test, the AGC is of the view that there is no actual process of differentiation taking place. Any manifest distinction is simply a product of an age-old, cultural institution. In other words, same-sex couples are not being discriminated against, per se; rather, they are not meeting the longstanding requirements of this institution. The AGC also makes an economic appeal, asserting that same-sex couples – regardless of their marital status – are not at a disadvantage because they are afforded “equal benefit and protection” as domestic couples under federal law.
Justice LaForme disagrees on all accounts. It is a basic pillar of Canadian law, he asserts, that the state will respect an individual’s right to make personal choices, free of bigotry and prejudice. That is the very purpose the section 15 guarantee. As for the AGC’s “equal benefit” argument, Justice LaForme dismisses this as a blatant “non-answer to the concerns of the Applicants.”
Understandably, the second requirement – that the differential treatment be based on a prohibited ground – is conceded by the AGC. The third requirement, however, is contested.
It has, at this point, been established that same-sex couples in Ontario are being treated differently by the state because of their sexual orientation. The question is: does this treatment impose a burden on homosexual couples? Right off the bat, Justice LaForme, whose stance on this issue has been clear from the very beginning, offers a complete endorsement of the Applicants’ submission on this point. He agrees that to exclude homosexual people from getting married is to exclude them from fully participating in Canadian society. As the test demands, Justice LaForme takes a number of “contextual factors” into account – namely, historical discrimination. It is virtually impossible, he writes, to produce a compelling argument in support of the notion that gay and lesbian people have not been historically discriminated against.
And so it is determined that the common law prohibiting gay marriage violates the Applicants’ right to equality, as protected by section 15 of the Charter. Like all Charter guarantees, however, equality is subject, under section 1, to reasonable limits. There is some debate as to whether a section 1 analysis is required for an infringing common law, as opposed to a statute. While it may not be strictly necessary, the judge believes that the importance of this decision warrants a complete analysis.
As per R v. Oakes, a section 1 justification requires (a) a pressing and substantial purpose, and (b) proportionate means. The proportionality component is further broken down into (i) rational connection, (ii) minimal impairment and (iii) a weighing of the positive and negative effects of the impugned law.
The first issue facing Justice LaForme, therefore, is whether the “objective” of the impugned common law sufficiently pressing. So what is the objective of preserving marriage for heterosexual couples? According to the AGC, the goal is “essentially to further procreation and provide institutional support to families with children.” Justice LaForme, in agreement with the Applicants, thinks that it is extremely farfetched – especially given the lack of evidence – to suggest that the primary goal of marriage is procreation. For this reason, he concludes that the AGC has failed to meet its evidentiary burden, and that the true purpose of this law is actually to exclude homosexual couples. It is, generally speaking, rare for a section 1 analysis to fail at the very first stage – and so, for the sake of completeness, Justice LaForme proceeds through the next three stages, failing the AGC at every one. With that, the marriages of Kevin Bourassa and Joe Varnell, and of Elaine Vautour and Anne Vautour, were declared valid.
The release of Justice LaForme’s decision on July 12, 2002 was an undoubtedly glorious moment for Ontario’s gay community – but it was just that, one important moment. Another important moment came on June 10, 2003, when a unanimous Ontario Court of Appeal rejected the AGC’s appeal. The most recent moment, of course, came just days ago, when gay New Yorkers got their first chance to tie the knot.