EGALE urges the Executive Director of Vital Statistics to issue a licence to EGALE Board-member Cynthia Callahan and her partner Judy Lightwater.


These submissions will demonstrate that nothing in British Columbia’s marriage legislation restricts solemnization of marriage to opposite-sex couples only, nor is there any federal legislation to that effect. The only Canadian consideration of the common law is by lower courts in other jurisdictions and are not binding in British Columbia. These decisions are themselves based upon English cases which have already been rejected by Canadian Courts.


In EGALE’s view, the Government of British Columbia is therefore not precluded from giving effect to its commitment to human rights by issuing the licence, in accordance with the constitutional requirements of equality.



EGALE (Equality for Gays and Lesbians Everywhere) is a national organization committed to advancing equality and justice for lesbians, gays, bisexuals and transgendered people. EGALE has members in every province and territory of Canada.

EGALE has appeared before numerous federal and provincial legislative Committees, most recently before the Senate and House of Commons Committees on Bill C-23, the federal omnibus legislation to extend to same-sex couples the rights and responsibilities of marriage in 68 federal laws.

EGALE also provided written and oral submissions to the B.C. Human Rights Commission in its review of British Columbia’s human rights legislation, and we have intervened before the Supreme Court of Canada in every lesbian and gay equality challenge, including the landmark decision in M v. H & Ontario, in which the Supreme Court of Canada cited EGALE’s submissions in four places in its judgment.


General approach

In his statement of May 26, 2000, the Attorney General of B.C. takes the position that the law in this area is “uncertain” and “ambiguous”, and that “[i]n a modern society there is no justification for denying same sex couples the same option to form marital bonds as are afforded to opposite sex couples.”

In view of this strong statement of principle, EGALE submits that the B.C. Executive Director of Vital Statistics should issue the marriage licence, unless clearly precluded from doing so by law. These submissions therefore examine each of B.C. statute law federal statute law and the common law to determine whether there is any clear provision requiring B.C. to refuse the application.

British Columbia’s legislation

An examination of B.C.’s Marriage Act reveals that nothing in the B.C. legislation precludes the issuance of a licence. EGALE’s research has identified five main categories of provincial law dealing with the gender requirements for marriage:
Laws which are gender-neutral or contain no restriction on marriage for same-sex couples;

Laws which reference or link with federal requirements;

Laws which contain gendered language which implicitly restricts marriage to opposite-sex couples only;

Laws which maintain explicit prohibitions on marriage for same-sex couples;

Laws which maintain explicit prohibitions on marriage for same-sex couples, and also invoke the constitutional “notwithstanding” clause in an effort to bar judicial scrutiny of the legislation’s constitutionality.

The following chart summarizes the categories into which the marriage legislation of each province and territory falls:
Jurisdiction(a) gender- neutral/no
restriction(b) link with federal
requirements(c) gendered
langauge(d) explicit same-sex
prohibition(e) use of notwithstanding

It will be noted that the Marriage Act1 of British Columbia is one of the most permissive in the country, with no language restricting marriage to opposite-sex couples only. Section 20(b) simply requires that the parties to the marriage declare themselves each other’s “wife or husband”. By contrast, the legislation of Ontario2 has a gendered provision requiring that the couple applying be declared “husband and wife”. This may explain why the City of Toronto in a similar application made recently has felt it necessary to refer the matter to the courts, rather than simply issuing the marriage licence.


Federal Legislation

The most striking aspect of the federal government’s statutory response to this issue is the absence of any explicit prohibition on equal marriage rights for same-sex couples.

The only legislation specifically enacted by Parliament to address capacity to marry is the Marriage (Prohibited Degrees) Act,3 which sets out the prohibited degrees of consanguinity, but is silent regarding any gender criteria.

On two occasions, the House of Commons has expressed its position that same-sex couples cannot marry, but in neither case does the pronouncement constitute anything more than a non-binding statement of opinion. On June 8,1999, the House of Commons adopted a Reform Party motion with an “opposite-sex” definition of marriage. As a supply day motion, however, there were no public or Committee hearings, it did not receive consideration by the Senate, nor does it constitute legislation or have the force of law.
Similarly, the federal government added an “interpretation clause” to Bill C-23, the Modernization of Benefits and Obligations Act, defining marriage in opposite-sex terms. The clause, however, simply provides that the provisions of Bill C-23 “do not affect” the definition of marriage. As a result, the provision does not itself constitute a legislative source of a prohibition on marriage for same-sex couples.


Detailed evidence on the legal impact of the proposed amendment was provided by Justice Department officials during Committee hearings:


Ms. Lisa Hitch (Senior Counsel, Modernizing Benefits and Obligations Team, Department of Justice): The bill itself does not deal with marriage, as the Minister has stated repeatedly. … This interpretation provision is limited to the same intention as is the rest of the statute, so this would simply apply to those 68 statutes that are listed in Bill C-23.


Mr. Svend Robinson: … I want to understand what you’re saying. There would be no change with respect to the legal issue of capacity to marry within federal jurisdiction. Is that correct?


Ms. Lisa Hitch: Yes. … The definition of marriage is outside of statute law. It’s in the common law, as are the requirements for who can validly contract a marriage, except for the limited purpose of people who are too closely related, which is in the Marriage (Prohibited Degrees) Act.4


This portion of the transcript clarifies that the amendment defining marriage is interpretative only, applies only to those statutes contained within Bill C-23 (which does not include any marriage legislation), and does not itself create any statutory prohibition on marriage for same-sex couples.


As a result, it is clear that there is no federal legislation precluding same-sex couples from marrying.


Common Law

(a) General position
It remains to consider whether the common law, itself an evolving institution, prohibits equal marriage rights for same-sex couples.
There are two primary cases in which this issue has been addressed. Each is a lower court decision and neither is binding in British Columbia. In Re North et al. and Matheson,5 the Manitoba County Court refused to issue a marriage licence to two men, and in Layland v. Ontario (Minister of Consumer & Commercial Relations)6 the majority of the Ontario Court (General Division) held that two persons of the same sex do not have the capacity to marry each other L~under the common law of Canada applicable to Ontario.7

In North and Matheson, Philp Co. Ct. J. acknowledged that no statutory enactment of either the provincial or federal government purported to restrict marriage to opposite-sex couples, and proceeded to consider the common law requirements. He rejected the applicants’ claim for a marriage licence, based upon the 1866 British decision of Hyde v. Hyde & Woodmansee8 dealing with polygamy, in which the Court set out the following definition of marriage:

I conceive that marriage, as understood in Christendom, may for this purpose be defined as the voluntary union for life of one man and one woman to the exclusion of all others.
The other case relied upon was Corbett v. Corbett (Ashley) (No.2)9 in which Ormrod J. ruled that a marriage involving a transgendered person was void because “the capacity for natural heterosexual intercourse” is an essential element of the concept of marriage.


These two English decisions were also relied upon in the Layland case, in which Southey J., on behalf of the majority, concluded:
Unions of persons of the same sex are not ‘marriages’ because of the definition of marriage.10
It should be noted that the issue has never been considered by an appellate court in Canada, and the decision of two inferior courts in Manitoba and Ontario would not be binding in British Columbia. Furthermore, in the Layland case, Greer J. delivered a strong dissent in which she held that the common law does not prohibit same-sex couples from marrying.

(b) Critiques of Hyde and Corbett

Although the decisions in Hyde and Corbett have formed the basis on which lower courts in Ontario and Manitoba have found that the common law restricts marriage to opposite-sex couples, it should be recognized that other more recent cases have rejected the principles articulated in both Hyde and Corbett. Indeed, the definition of marriage relied upon in the Hyde case no longer reflects the modern law of marriage. In a post-Charter era of religious diversity, for example, it would be inappropriate to base a legal definition on the concept of marriage “as understood in Christendom”, nor is a marriage any longer legally required to be a “union for life”.


In Re Hassan and Hassan11 Cory J. explicitly rejected Hyde on the basis that it is inconsistent with Canada’s pluralistic approach to diversity issues. Cory J. reviewed “the history in England of the gradual erosion and final discarding of the principle enumerated by Hyde v. Hyde.”12 In the result, Cory J. affirmed the trial judge’s ruling that “the case of Hyde v. Hyde does not represent the common law in the Province of Ontario.”13


Similarly, both the courts’ and society’s understanding of transgendered issues has evolved considerably since the Corbett case was decided, and Corbett has not been followed in a number of other jurisdictions. The majority of the New South Wales Court of Criminal Appeal, for example, rejected Corbett in the case of R v. Harris and McGuinness, saying:

At the time it was decided Corbett was regarded as a beacon in largely uncharted seas. In the years that have followed, many jurisdictions have voyaged upon those seas, but the beacon has by no means been universally recognized as furnishing safe navigational guidance. Moreover, as a more compassionate, tolerant attitude to the problem of human sexuality emerges amongst the civilised nations of the world, the founding of that decision on clinical factors present at birth has come under increasing criticism. Its continuing application, even in the field of marriage and divorce in the United Kingdom, has for some time been at least open to question.14


In EGALE’s view, the Government of British Columbia should not feel obliged to deny equality to same-sex couples based upon an 1866 English decision, which was restricted to a consideration of polygamy, and a 1970 English decision which displays a very limited understanding of transgenderism, particularly in view of the fact that these cases have subsequently been rejected by Canadian courts.
(C) Evolving nature of marriage


The Courts have continuously affirmed that the common law is flexible enough to adapt to changing social real ities.15 As Greer J. noted in the Layland case:

That the common law expands to meet social needs is not a new concept. … The common law does not remain static. Its very essence is that it is able to grow to meet the expanding needs of society.16


It must also be recognized that marriage as an institution has demonstrated its capacity to evolve over time so as to better accommodate the requirements of equality. In the United States, for example, procreation was at one time used as a rationale to maintain anti-miscegenation statutes.17 In State v. Jackson, the Court commented:
It is stated as a well authenticated fact that if the issue of a black man and a white woman and a white man and a black woman, intermarry, they cannot possibly have any progeny, and such a fact sufficiently justifies those laws which forbid the intermarriage of blacks and whites… 18


Similar views were expressed in Scott v. State:
Our daily observation shows us, that the offspring of these unnatural connections are generally sickly and effeminate, and that they are inferior in physical development and strength to the full blood of either race.19


In Naim v. Naim20, it was considered that the State of Virginia had a legitimate purpose in maintaining anti miscegenation statutes in order to, inter alia, “preserve the racial integrity of its citizens”, prevent “the corruption of blood”, avoid a “mongrel breed of citizens” and the “obliteration of racial pride”.


Ultimately, however, the United States Supreme Court in Loving v. Virginia,21 struck down Virginia’s anti-miscegenation laws, and affirmed marriage as a fundamental institution premised on principles of equality.


Similar changes have taken place with respect to woman’s equality. In the early case of Durham v. Durham,22 the Court defined marriage by reference to “the natural relations which spring from that engagement, such as protection on the part of the man, and submission on the part of the woman.” Similarly, Blackstone described the legal status of a married woman as follows:
By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing.


This passage was cited by the Supreme Court of Canada in R. v. Salituro23 to demonstrate the extent to which the nature of marriage has changed.
Just as marriage has adapted to reflect the needs of gender and racial equality, so too it should be recognized that there is no basis for denying same-sex couples the equal right to marry.


Effect of the Charter


As the Attorney General of British Columbia has recognized in his written statement, the recent decision of the Supreme Court of Canada in M. v. H Ontario24 affirms the constitutional right of same-sex couples to equal treatment under the law. Section 52 of the Constitution Act, 1982 provides that the Constitution, including the Charter of Rights, is the “supreme law of Canada”. The Attorney General of British Columbia is therefore mandated to take into account the requirements of the equality guarantees of the Charter in deciding whether or not to issue the marriage licence.


The Supreme Court decisions in Law v. Canada25 and M v. H have emphasized that the focus of the guarantee of equality contained in 5.15 of the Charter is on the discriminatory impact of the impugned provision, measured by the extent to which the differential treatment violates the purposes of s.1 5, namely:


“…to prevent the violation of essential human dignity and freedom through the imposition of disadvantage, stereotyping, or political or social prejudice, and to promote a society in which all persons enjoy equal recognition at law as human beings or as members of Canadian society, equally deserving of concern, respect and consideration.”


It is clear that the denial of equal marriage rights to same-sex couples is squarely premised upon prejudicial beliefs that our relationships are less worthy of concern, respect and consideration than heterosexual relationships. In Canada, marriage is the most prominent and visible way in which committed romantic relationships are accorded public recognition. Many children are taught from an early age that they will grow up and get married. When a person realizes that they will not, in fact, be allowed to get married, the results can be devastating. Even if we would not choose to get married, the exclusion from marriage denies us that choice.
The exclusion of same-sex relationships from marriage speaks volumes. It sends a loud and clear message that governments believe our relationships are inferior, are not worthy of the term “marriage”. Some people go so far as to argue that inclusion of our relationships would “soil” or “insult” the institution, presumably because of the inherently immoral nature of our relationships. This hurtful message must change, and governments have a responsibility to comply with the Constitution and ensure that our exclusion is not condoned by State action.


Support for this perspective is inherent in the majority judgments of the Supreme Court in Egan V. Canada, in which it was held that the equality guarantees of the Charter are violated by the denial of state legitimacy and equal status to same-sex couples:
The law confers a significant benefit by providing state recognition of the legitimacy of a particular status. The denial of that recognition may have a serious detrimental effect upon the sense of self-worth and dignity of members of a group because it stigmatizes them even though no economic loss is occasioned. This principle has been recognized in the cases of the U.S. Supreme Court dealing with the segregation of races.26
In EGALE’s view, there is no basis on which same-sex couples can be denied a marriage licence consistent with the Charter of Rights.




Given the commitment to equality of the B.C. Government, EGALE believes the government should issue the marriage licence unless it is clearly precluded from doing so by law. Nothing in British Columbia’s marriage legislation restricts solemnization of marriage to opposite-sex couples only, nor is there any federal legislation to that effect. The only Canadian consideration of the common law is by lower courts in other jurisdictions and are not binding in British Columbia. These decisions are themselves based upon English cases which have already been rejected by Canadian Courts. Further, recent decisions of the Supreme Court of Canada make it clear that the denial by the State of equal legitimacy for those in same-sex relationships violates the Charter of Rights as the supreme law of Canada and undermines human dignity in a manner reminiscent of racial segregation.


For these reasons, EGALE respectfully requests that the marriage licence be issued.

1 Marriage Act, R.S.B.C. 1996, C. 282, s. 20.
2 Marriage Act, R.S.O. 1990, C. M.3.
3 S.C.1990, c. 46.
4 Hansard, Standing Committee on Justice and Human Rights (March 23, 2000) at paras 1100 – 1105, 1110.
5 (1975), 52 D.L.R. (3d) 280 (Man. Co. Ct).
6 (1993), 14 O.R. (3d) 658 (Div. Ct.).
7 Ibid. at 663.
8 (1866), L.R. I P&D 130 at 133.
9 [1970] 2 All E.R. 33 at 48.
10 Supra at 223.
11 (1976), 12 OR. (2d) 432 (Ont. High Court of Justice).
12 Ibid at 434.
13 Ibid. at 433, 439.
14 (1988) 17 N.S.W.L.R. 158 at 160.
15 See R. v. Sailturo, [1991] 3 S.C.R. 654 at 665-666, 670; R. V. Swain, [1991] 1 S.C.R. 933.
16 Supra at 223-224.
17 See H. M. Applebaum, Miscegenation Statutes: A Constitutional and Social Problem, (1964) 53 Geo. L.J. 49.
18 80 Mo. 175 at 179 (1883); cited in Applebaum, ibid. at note 108.
19 39 Ga. 321 at 323 (1869); cited in Applebaum, ibid. at note 108.
20 87 S.E. 2d. 749 at 756 (1955).
21 18 L. Ed. 2d. 1012 (U.S.S.C.).
22 (1885), 10 P.D. 80 at 82.
23 Supra at 67l-72.
24 [1999] 2 S.C.R. 3.
25 (1999), 170 D.L.R.(4th) 1.
26 [1995] 2 S.C.R. 513 at 594.