Charter Litigation

Egale Canada Inc. v. Canada (Attorney General)

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

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 section 91(26) of the Constitution Act, 1867 can mean only 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 can alter that definition, the Court concluded. It was frozen in time and the only way to change it was by a constitutional amendment.

Sections 91 and 92 of the Constitution Act, 1967 simply assign legislative power over particular classes of subjects to either the federal government or to the provincial governments; i.e. they establish the division of powers between the levels of government. The lower court effectively decided that marriage is not in the legislative jurisdiction of any level of government.

In the alternative, the lower 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 section 15 of the Canadian Charter of Rights and Freedoms. However, the Court concluded that this discrimination against gays and lesbians was a reasonable limit that was justified in a free and democratic society under section 1 of the Charter.

Egale Canada Inc. 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. The Court held that the common law bar on same sex marriage violates the equality rights of gays and lesbians under the Charter.

In overturning the lower court decision, the B.C. Court of Appeal largely agreed with the reasons of Justice LaForme in a similar decision of the Ontario Divisional Court decided in July 2002. The B.C. Court 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.

Egale Canada Inc. and five same-sex couples were represented by Cynthia Petersen and her B.C. co-counsel Joe Arvay.

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

Click here to read the Court of Appeal's supplementary decision to lift the suspension of its remedy

Click here to read the lower Court's decision