Charter Litigation

Halpern v. Canada (Attorney General)

In June 2003, the Ontario Court of Appeal become the second Canadian provincial appellate court to hold that gays and lesbians have the right to marry.

Two cases raising the question of same-sex marriage were heard by the Ontario Superior Court of Justice (Divisional Court) in November 2001. In the first case, eight same-sex couples sought the right to marry. In the second case, the Metropolitan Community Church of Toronto sought to have the marriages it performs for gay and lesbian couples recognized by the state. The national equality rights group Egale Canada Inc. intervened in both cases to support the couples and MCCT.

In a 129 page decision released in July 2002, in which each of the three judges wrote separate reasons, the Divisional Court concluded that the common law bar to same-sex marriage breaches the equality rights of gays and lesbians under section 15 of the Charter of Rights and Freedoms. The Court further held that the government did not justify the discrimination under section 1 of the Charter.

However, the judges disagreed on the question of remedy. One judge declared that same-sex couples should be entitled to marry effective immediately. The other two judges decided that the effect of their decision should be suspended for two years to allow the federal and provincial governments to take whatever action was necessary to comply with the decision. However, the judges made it clear that any legislation must comply with the Charter and, in particular, must give same-sex couples the same recognition as opposite-sex couples.

The federal government appealed the decision to the Ontario Court of Appeal. On June 10, 2003, the Court of Appeal dismissed the appeal, holding that the common law definition of marriage offends the equality rights of gays and lesbians under section 15(1) of the Charter in a manner that cannot be justified in a free and democratic society. The Court declared the current definition of marriage to be invalid and reformulated the definition of marriage to be "the voluntary union for life of two persons to the exclusion of all others".
Unlike the Divisional Court, the Ontario Court of Appeal did not suspend the effect of its decision. Rather, it ordered that the declaration of invalidity and the reformulated definition of marriage would have immediate effect. It also ordered the City of Toronto to issue the marriage licenses to the same-sex couples who challenged the law and ordered the Province of Ontario to register the marriages of two couples who were married by MCCT in January 2001.

The British Columbia Court of Appeal had already ruled that excluding same-sex couples from marriage violated their equality rights. However, like the Ontario Divisional Court, it had suspended the effect of its decision. After same-sex marriage became effective in Ontario, Egale brought a motion before the British Columbia Court of Appeal to lift the suspension so that couples in B.C. could marry. That motion was granted on July 8, 2003.

Within a year and a half, courts all over Canada followed suit. By the fall of 2004, Quebec, Manitoba, Saskatchewan, Nova Scotia, Newfoundland, New Brunswick and the Yukon Territories had also legalized same sex marriage. Only Alberta, Prince Edward Island, the Northwest Territories and Nunavut did not have same-sex marriage when the federal government referred to the Supreme Court of Canada for an advisory opinion in October 2004. In the Same Sex Marriage Reference, the Court addressed several questions the government asked regarding draft legislation to change the common law definition of marriage. Federal legislation was subsequently passed in 2005, making same-sex marriage legal across the country.

Egale was represented in the Halpern case by Cynthia Petersen, Vanessa Payne and Charlene Wiseman.

Click here to read the Court of Appeal's decision.

Click here to read the Divisional Court's decision.

Click below to read some of the affidavit evidence in the Ontario and B.C. marriage cases. Note: Many other affidavits were filed by the applicants in both cases. These particular affidavits generally address: (1) whether marriage has been an exclusively heterosexual institution over time and across cultures; (2) the evolving nature of marriage in Canada; (3) whether the meaning of the word "marriage" is capable of including same-sex couples; and (4) the results of research regarding lesbian and gay parenting.

• Affidavit of William Eskridge, Jr., [documenting how same-sex relationships have been recognized as unions or marriages throughout history and across cultures]
• Affidavit of Barry Adam [on the cross-cultural evidence of same-sex partnerships and marriage and the evolution of cultual conceptions of homosexuality]
• Affidavit of Bettina Bradbury [on the history and evolution of the institution of marriage in Canada]
• Reply Affidavit of Bettina Bradbury [responding to a government affidavit, sworn by Edward Shorter, which suggested that the recognition of same-sex marriage would threaten the continued existence of heterosexual marriage]
• Affidavit of Margrit Eichler [on the evolution of the family in Canada]
• Affidavit of Katherine Arnup [on the history and evolution of the family in Canada, and how previous changes, now considered innocuous or progressive, were thought to be a threat to the continued existence of marriage, the family and civilization]
• Affidavit of Andrew Koppelman [demonstrating the relevance and applicability of the miscegenation analogy to denying gays and lesbians the right to marry and refuting the claim that a registered domestic partnership regime would be an adequate alternative to marriage]
• Affidavit of Susan Ehrlich [on the social construction of meaning and whether the term "marriage" could include same-sex couples]
• Affidavit of Adele Mercier [responding to a government affidavit, sworn by Robert Stainton, that claimed the term "marriage" could refer only to heterosexual unions]
• Affidavit of Jerry Bigner [reviewing the social science evidence relating to lesbian and gay parenting, showing that lesbians and gays have equal parenting skills to their heterosexual counterparts and that children raised by lesbians and gays are just as healthy and well-adjusted as children with heterosexual parents]
• Affidavit of Judith Stacey and Timothy Biblarz [responding to a government affidavit, sworn by Steven Nock, which suggested that all of the social science evidence on lesbian and gay parenting was worthless, and to an affidavit filed by an intervener coalition of right wing groups, sworn by Craig Hart, which claimed that social science research shows that "natural" - i.e. heterosexual - family structures provide greater security and stability for raising children]