Applicants (Appellants)
and
ONTARIO MINISTER OF CONSUMER AND COMMERCIAL RELATIONS
Respondent
(Respondent in appeal)
ATTORNEY GENERAL OF CANADA
Intervenor
APPLICATION UNDER ss.2 and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c.J.1, and s.8(4) of the Marriage Act, R.S.O. 1990, c.M.3
FACTUM OF THE APPELLANTS
PART I: INTRODUCTION
1. This is an appeal from a decision of the Ontario Court (General Division) Divisional Court, dismissing the application of the appellants Beaulne and Layland for judicial review of a refusal by the City Clerk in the City of Ottawa to issue them a marriage licence.
2. In a majority decision, the Ontario Court (General Division) Divisional Court held that the common law prohibits same-sex marriage and that this common law prohibition does not constitute “discrimination” against lesbians and gays pursuant to s.15(1) of the Canadian Charter of Rights and Freedoms.
Reasons of Majority in Divisional Court, Appeal Book, Tab 3, at 7, 14
3. In dissenting reasons, Madam Justice Greer held that there is no common law prohibition against same sex marriages in Canada and that restricting marriage to heterosexual couples would violate s.15 of the Charter and could not be justified under s.1.
Reasons of Minority in Divisional Court, Appeal Book, Tab 4, at 4
4. On June 7, 1993, this Honourable Court granted leave for the appellants Shannon and Schouwerwou to be joined as applicants and appellants, and granted leave to appeal.
Order of Court of Appeal, Appeal Book, Tab 30
PART II: STATEMENT OF FACTS AND SUMMARY OF EVIDENCE
5. The appellants Beaulne and Layland cohabited in a gay relationship from on or about August 1991 until early 1993, when their relationship ended.
First Affidavit of Todd Layland, Appeal Book, Tab 6, para. 2
Third Affidavit of Todd Layland, Appeal Book, Tab 8, para. 2
First Affidavit of Pierre Beaulne, Appeal Book, Tab 9, para. 2
Third Affidavit of Pierre Beaulne, Appeal Book, Tab 11, para. 2
6. On or about January 16, 1992 the appellants Beaulne and Layland attended at the office of the City Clerk of the City of Ottawa and submitted a marriage licence application. The employee of the City of Ottawa City Clerk’s Office to whom the application was presented refused to accept it. She stated that same sex marriage is “illegal in Canada”.
First Affidavit of Todd Layland, supra, paras. 4, 5
First Affidavit of Pierre Beaulne, supra, paras. 4, 5
7. The appellants Shannon and Schouwerwou have cohabited in a gay relationship since December 25,1987. On February 21,1988 the appellant Schouwerwou asked the appellant Shannon whether he would join with him in holy union. The appellant Shannon consented. On May 6, 1989, they participated in an Act of Holy Union ceremony performed by the Metropolitan Community Church of Ottawa/Eghse Communautaire Métropolitaine d’Ottawa.
Second Affidavit of Charles Schouwerwou, Appeal Book, Tab 13, paras. 2-4
Second Affidavit of William Shannon, Appeal Book, Tab 15, paras. 2-3
8. On April 6, 1993 the appellants Shannon and Schouwerwou submitted an application for a marriage licence at the office of the City Clerk, Ottawa City Hall. The employee of the City Clerk’s office refused to accept it, saying “If you want to get married, you’ll have to go to Court like the other guys.” Another clerk added “It hasn’t gone through yet.”
Second Affidavit of Charles Schouwerwou, supra, para. 5
Second Affidavit of William Shannon, supra, para. 5
9. The marriage licence applications of all appellants were otherwise in order, and there no other legal impediments preventing the appellants from getting married.
Marriage Act, R.S.O., 1990, c.M.3
Marriage (Prohibited Degrees) Act (Canada) 1990, c.46
First Affidavit of Todd Layland, supra, para. 4
First Affidavit of Pierre Beaulne, supra, para. 4
Second Affidavit of William Shannon, supra, Exhibit B
Second Affidavit of Charles Schouwerwou, supra, Exhibit B
10. The Marriage Act provides that marriage licences may be issued by the clerk of every city, town and village. Where a person authorized to issue a marriage licence refuses to do so, the applicant may apply to Divisional Court for judicial review of the refusal and for an order directing that a licence be issued.
Marriage Act, supra, ss.8(4), 11(1)
11. The appellants have initiated the present proceedings submitting that the refusal of the City Clerk of the City of Ottawa to issue them a marriage licence infringes their constitutional equality rights. All of the appellants seek a declaration that any prohibition of same-sex marriages is unconstitutional and of no force and effect and the appellants Shannon and Schouwerwou further seek an order directing that they be issued with a marriage licence.
Notice of Application for Judicial Review, Appeal Book, Tab 1
12. The Appellants filed twenty-two affidavits in support of their position. Each of the Appellants Layland and Beaulne have filed three affidavits. The first of these affidavits describes their attempt to submit a marriage licence application and the rejection of that application by the City Clerk. The second of these affidavits describes the negative impact of the law’s refusal to permit the Appellants to marry. The third of these affidavits describes the relationship breakup of the Appellants Beaulne and Layland and the difficulties created for their relationship by the refusal of the State to recognize that relationship.
First Affidavit of Todd Layland, supra
Second Affidavit of Todd Layland, Appeal Book, Tab 7
Third Affidavit of Todd Layland, supra
First Affidavit of Pierre Beaulne, supra
Second Affidavit of Pierre Beaulne, Appeal Book, Tab 10
Third Affidavit of Pierre Beaulne, supra
13. The Appellants Schouwerwou and Shannon each filed two affidavits. The first of these affidavits describes the nature of their relationship and the solemnization of that relationship through an Act of Holy Union cereinony. The second of these affidavits describes their attempt to submit a marriage licence application and the rejection of that application by the City Clerk.
First Affidavit of Charles Schouwerwou, Appeal Book, Tab 12
Second Affidavit of Charles Schouwerwou, supra
First Affidavit of William Shannon, Appeal Book, Tab 14
Second Affidavit of William Shannon, supra
14. Dr. Rosemary Barnes filed an expert report as a psychologist, in which she deposes to the difficulties experienced by lesbians and gays as a result of their inability in law to marry, and the beneficial consequences of according spousal recognition to lesbian and gay couples.
Affidavit of Rosemary Barnes, Appeal Book, Tab 16
15. Professor Mariana Valverde filed an expert report as a sociologist, in which she deposes to the sociology of lesbian and gay unions and the adverse social impact of the law’s refusal to recognize those relationships.
Affidavit of Mariana Valverde, Appeal Book, Tab 17
16. Reverend Virginia Reinecker of the Metropolitan Community Church, Reverend Elizabeth Benjamin of the Unitarian Universalist Association and Reverend Sharon Moon of the United Church of Canada each deposed to the support and blessing which their Church gives to lesbian and gay unions. Reverend Reinecker and Reverend Benjamin attached copies of sample ceremonies used by their Churches to bless same sex unions.
Affidavit of Rev. Virginia Reinecker, Appeal Book, Tab 19 Affidavit of Rev. Elizabeth Benjamin, Appeal Book, Tab 20
Affidavit of Rev. Sharon Moon, Appeal Book, Tab 23
17. Lydia Segal of the Universal Fellowship of Metropolitan Community Churches filed records detailing the Holy Union ceremonies of nearly 10,000 lesbians and gays from around the world.
Affidavit of Lydia Segal, Appeal Book, Tab 27
18. Vera Hrebacka, Catherine Jones, Heidi McDonell, Michael Ball, Melody Matthews and Debora Meilleur deposed to the negative consequences and stigmatization which they experienced as lesbians or gays as a result of being prohibited from affirming their relationships through marriage. Michael Ball deposed to the special significance that such a commitment would have had in view of the fact that his late partner and himself each had MDS, and Debora Meilleur and Melody Matthews deposed to the significance of marriage for each of them, particularly in view of the fact that they are raising one child together and taking steps to have another child through artificial insemination.
Affidavit of Vera Hrebacka, Appeal Book, Tab 18
Affidavit of Catherine Jones, Appeal Book, Tab 21
Affidavit of Heidi McDonell, Appeal Book, Tab 22
Affidavit of Michael Ball, Appeal Book, Tab 24
Affidavit of Melody Matthews, Appeal Book, Tab 25
Affidavit of Debora Meilleur, Appeal Book, Tab 26
19. The Respondent filed no evidence and the Intervenor Attorney General of Canada filed one affidavit in support of his position: Professor Charles Hobart attached to his affidavit two expert reports as a sociologist. The first of these reports examines the sociology of homosexuality from Ancient Greece up to Victorian England and traces the historical persecution of homosexuals in these time periods. The second report examines the nature of marriage-like traditions in diverse cultures, and traces the development of marriage from Ancient Hebrew society up to Victorian England, with particular emphasis upon the way in which the institution of marriage has adapted and transformed to accommodate the demands of equality for women.
Affidavit of Professor Hobart, Appeal Book, Tab 28
PART III: ISSUES AND LAW
20. The Appellants respectfully submit that the following issues arise in this appeal:
A. Whether the Divisional Court erred in law in finding that the common law prohibits marriage between persons of the same sex,

B. Whether the Divisional Court erred in law in finding that a common law prohibition on same-sex marriage does not infringe the equality rights of lesbians and gays under s.15(1) of the Canadian Charter of Rights and Freedoms (”the Charter”);

C. If so, whether such an infringement of the equality rights of lesbians and gays is justified in a free and democratic society under s.1 of the Charter;

D. The appropriate remedy which should be granted to address any discrimination found to exist.

A. IS THERE AN EXISTING PROHIBITION OF SAME-SEX MARRIAGE?
21. It is submitted that neither legislation nor common law in Canada prohibits a lesbian or gay couple from marrying.
22. Pursuant to s.91(26) of the Constitution Act, 1867 (U.K.), Parliament has exclusive jurisdiction over capacity to marry. The provincial legislatures have jurisdiction only over the formalities of the ceremony of marriage, pursuant to s.92(12) of the same Act. The Ontario legislature would therefore not be competent to impose a restriction upon same-sex marriage, and it has not purported to do so.
Constitution Act, 1867 (U.K.), c.3, ss.91(26) & 92(12)
Attorney General for Alberta v Underwood, [1934] S.C.R. 635
23. Although Parliament would be competent to enact legislation restricting the right to marry to heterosexuals, it has not done so. The only federal legislation bearing upon the question of capacity to marry is the Marriage (Prohibited Degrees) Act, which deals only with prohibited degrees of consanguinity.
Marriage (Prohibited Degrees) Act, S.C. 1990, c.46
24. While the common law in other jurisdictions has denied homosexuals the right to marry, the Appellants submit that the common law may vary from one jurisdiction to another.
Australian Consolidated Press v Uren, [1969] 1 A.C. 590, 641 (P.C.)
Hogg, Constitutional Law of Canada, (3rd ed., 1992), p.2.5, fn 13
25. It is submitted that there is no authority binding on this Honourable Court requiring a finding that the common law prohibits same-sex marriages. The only Canadian case which purports to restrict capacity to marry to heterosexuals is Re North and Matheson. This was a 1974 decision of the County Court of Winnipeg, was brought under the Manitoba legislation and reflects pre-Charter values. The case was based upon the definition of marriage in an early English case, Hyde v Hyde, which was restricted to a consideration of polygamy.
Re North and Matheson (1974), 52 D.L.R. (3d) 280 (Co. Ct. Winn.)
Hyde v Hyde & Woodmansee (1866), L.R. 1 P&D 130
26. In C.(L.) v C.(C.) the Ontario Court (General Division) applied North v Matheson to rule that a marriage between a woman and a female-to-male transsexual was a nullity. The Court concluded that the law “as it presently exists” does not provide for marriages between persons of the same sex.
C.(L.) v C.(C.) (1992), 10 O.R. (3d) 254, 256
27. The issue of same-sex marriage has not been addressed by a superior court in the light of post-Charter values. It is respectfully submitted that the common law must adapt to reflect changing social realities and, in the Canadian context, should be interpreted and developed in conformity with Charter values.
Prager v Blatspiel Stamp and Heacock Ltd, [1924] 1 K.B. 566, 570
R v Salituro, [1991] 3 S.C.R. 654, 665-666, 670
R v Swain, [1991] 1 S.C.R. 933, 978-979
28. The Supreme Court of Canada has stated that the values underlying the Charter include respect for human dignity, accommodation of a wide variety of beliefs, a commitment to equality and social justice, and the enhancement of the participation of all individuals and groups in society.
R v Oakes, [1986] 1 S.C.R. 103, 136
R v Keegstra, [1990] 3 S.C.R. 697, 736, 756
29. It is submitted that it is not appropriate for this Honourable Court to promulgate in this jurisdiction a common law rule which expressly infringes the equality rights of lesbians and gays and which entrenches discrimination against lesbians and gays and thereby stigmatizes their relationships. The Court should not take an active role in fostering discrimination. It is submitted that to interpret and apply the common law in such a way as to deny lesbians and gays access to the institution of marriage is comparable to perpetuating the discriminatory common law rule which once prohibited women from holding public office.
Edwards v Canada (Attorney General), [1930] A.C. 124 (P.C.), reversing [1928] S.C.R. 276
30. If however this Honourable Court finds that the common law prohibits same-sex marriage, it is submitted that this common law rule infringes the equality guarantees of the Canadian Charter of Rights and Freedoms.
B. SECTION 15
31. Section 15(1) of the Charter provides:
“15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”
Requirements of Section 15:
32. The Supreme Court of Canada has held that s.15 of the Charter requires an inquiry into:
whether the distinction created by the impugned law violates one of the equality rights and, if so,
whether that distinction is discriminatory in its purpose or effect.
R V Turpin, [1989] 1 S.C.R. 1296, 1334
Andrews V Law Society of British Columbia, [1989] 1 S.C.R. 143
(i) Denial of Equality Before the Law and Eciual Benefit and Equal Protection of the Law
33. The first part of s.15(1) requires that there be a denial of one of the four equality rights: equality before the law, equality under the law, equal protection of the law and equal benefit of the law. The Supreme Court of Canada has emphasized that each of the four basic equality rights in s.15(1) must be given its “full independent content divorced from any justificatory factors applicable under s.1” to help secure the “unremitting protection of equality rights in the years to come.”
Turpin, supra, 1325-1326
34. An inquiry into whether there has been a denial of one of the four equality rights “will focus largely on whether the law has drawn a distinction (intentionally or otherwise) between the claimant and others, based on personal characteristics.”
R v Swain, supra, 992
35. It is submitted that a common law prohibition of same-sex marriage infringes the rights of lesbian and gay couples to equality before the law and the equal benefit and protection of the law. Such a prohibition creates a clear distinction based upon the personal characteristic of sexual orientation: heterosexuals may marry the partner of their choice, homosexuals may not. Lesbian and gay relationships are not accorded equal status in law, nor do lesbians and gays have equal access to the benefits bestowed by the law upon those (heterosexual) couples who marry. Nor do lesbian and gay relationships receive the equal protection which legal recognition affords to married couples, particularly in times of crisis such as relationship breakdown, illness or death.
Affidavit of Dr. Barnes, supra
Affidavit of Prof. Valverde, supra
36. McIntyre J stated in Andrews that in assessing the scope of the equality rights, “the main consideration must be the impact of the law on the individual or the group concerned”. Any State-sanctioned refusal to recognize lesbian and gay relationships through marriage stigmatizes those relationships as inferior, assigns them second-class status and reinforces stereotypes that lesbian and gay relationships are uncommitted, shallow and unloving. Professor Hobart, a sociologist who presented affidavit evidence for the Attorney General of Canada, acknowledges that reduction of the stigmatization of lesbians and gays is a real social benefit, in that greater societal acceptance of lesbians and gays gives them “the psychological resources for living satisfying and productive lives.”
Andrews, supra, at 165, 171
Affidavit of Charles Hobart, Appeal Book, Tab 28, at 47
Affidavit of Rosemary Barnes, Appeal Book, Tab 17
Affidavit of Mariana Valverde, Appeal Book, Tab 16
Herek, “Myths about Sexual Orientation: A Lawyer’s Guide to Social Science Research” (1991), 1 Law & Sexuality 133, 145-148,161-164
37. The Supreme Court of Canada has held that deprivation of choice is itself a denial of equality before the law. A prohibition of same-sex marriage denies lesbians and gays the choice of whom to marry. That choice belongs to individuals alone, not to the government.
Turpin, supra, at 1329-1330
R v Morgentaler, [1988] 1 S.C.R. 30,166
R v Salituro, supra, 674
Stoddard, “Yes: Marriage is a Fundamental Right”, 76 ABA Journal 1990, 42
38. In defining the scope of the equality rights, McIntyre J in Andrews also stated that the “promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration”. It is therefore clear that s.15 is directly concerned with issues of social validation and legitimacy. The United States Supreme Court has recognized that maintaining racially-segregated facilities is a denial of equality, precisely because one group is stigmatized and treated as of inferior status.
Andrews, supra, at 171
Brown v the Board of Education of Topeka, 347 U.S. 483, 492-493; 98 L.Ed.2d.873, 879-881(1954)
39, The equality rights denied to the Appellants involve the denial not only of personal choice and human dignity, but also of concrete social benefits. As a direct result of the law under challenge, lesbians and gays are prohibited from affirming their relationships through marriage, and are denied access to the emotional, psychological, social and material benefits of marriage.
Affidavit of Dr. Rosemary Barnes, supra
(ii) Is the Distinction Discriminatory?
Definition of Discrimination
40. Before a distinction on the grounds of sexual orientation will violate s.15(1), it must be discriminatory. “Discrimination” for the purposes of s.15(1) has been defined as:
“a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society.”
Andrews, supra, 174-175, per McIntyre J.
R v Swain, supra, at 992
41. There are a number of burdens which are imposed upon lesbians and gays as a result of a legal prohibition of same-sex marriage, and a number of benefits which are denied. In particular, prohibiting lesbian and gay couples from marrying:
stigmatizes lesbians and gays and their relationships;

denies them institutional and support mechanisms that help to strengthen relationships;

stigmatizes children raised by lesbian and gay parents;

weakens the effective flinctioning of lesbian and gay relationships in times of crisis (e.g. unforseen accidents, births, illnesses)

reduces the material wellbeing of lesbian and gay couples.

Affidavit of Dr. Rosemary Barnes, supra
Affidavit of Prof. Mariana Valverde, supra
42. By being denied legal recognition as spouses, lesbians and gays are also denied access to all the benefits available to heterosexuals whose relationships are recognized in law. These include legal recognition as next-of-kin, and increased recognition in tax, succession, immigration and family law. Federally, there are approximately 50 statutes which define rights and obligations on the basis of the spousal relationship. In Ontario, there are some 49 statutes which have been identified. In Egan the Federal Court of Appeal denied a gay couple who had lived together for 45 years a pension benefit on the basis that lesbians and gays would not be entitled to spousal benefits without a challenge to the common law and statutory concept of marriage.
Egan V Canada, unreported, F.C.A., A-1335-91, April 29, 1993, at 36
List of Federal statutes, Appendix A
“Happy Families: The Recognition of Same-Sex Spousal Relationships”, a brief on the recognition of same-sex spousal relationships written for the Ontario legislature by the Coalition of Lesbian and Gay Rights in Ontario
43. The test for discrimination defined by the Supreme Court of Canada is met once it has been shown that a legal distinction has the effect of denying benefits to or imposing burdens upon a group which has suffered historical, social or legal disadvantage. The Supreme Court has stated that a finding of discrimination must take place in the context of “the purposes of s.15 in remedying or preventing discrimination against groups suffering social, political or legal disadvantage in our society”, and referred to the “indicia of discrimination” as “stereotyping, historical disadvantage or vulnerability to political and social prejudice”. A finding of discrimination requires a search for disadvantage that exists apart from and independently of the particular legal distinction that is being challenged”, and, in particular, involves an analysis of “the place of the group in the entire social, political and legal fabric of our society”.
Andrews, supra, 152, 178-182
Turpin, supra, 1332-1333
Schachtschneider V the Queen, unreported, F.C.A., A-1190-91, July 6, 1993, per Linden JA, at 21
Swain, supra, 992
44. It has now been accepted in a large number of recent cases that lesbians and gays are an historically disadvantaged group protected by the equality guarantees of s.15 of the Charter.
Haig and Birch V Canada (1992), 9 O.R. 495, 503 (Ont. C.A.)
Brown V British Columbia (Minister of Health) (1990), 42 B.C.L.R. (2d) 294, 309 (B.C.S.C.)
Veysey V Commissioner of Correctional Services of Canada (1989), 44 C.R.R. 364 (F.C.T.D.); affirmed on different grounds (1990) 47 C.R.R. 394 (F.C.A.)
Knodel V British Columbia (Medical Services Commission) (1991), 58 B.C.L.R. (2d) 356 (B.C.S.C.)
Egan V Canada, supra
Leshner V the Crown in Right of Ontario, unreported, Ontario Board of Inquiry, August 31, 1992
Douglas V the Queen, unreported, Court No. T-160-90, F.C.T.D., October 27, 1992
45. By any standards, lesbians and gays form an identifiable group which has been historically disadvantaged, subjected to stereotyping, and victimized by social prejudice. Professor Hobart details the historical oppression of homosexuals, citing such human rights abuses as criminal sanctions against homosexuality, the imposition of the death penalty and castration of gay men.
Affidavit of Charles Hobart, supra, at 55, 63-66, 73
46. In addition, lesbians and gay men have been treated as mentally ill, and subjected to conversion therapies, including electroshock treatment, lobotomies and castration and hysterectomy; they have had to contend with a variety of offensive and damaging stereotypes depicting lesbians as masculine and sexually aggressive and gay men as child-molestors or effeminate; they are frequently the targets of assaults motivated by prejudice and face harassment in virtually all walks of life.
Report of the Parliamentary Committee on Equality Rights, Equalitv for All, October 1985, 26
Herek, supra
Ryder, Equal Rights and Sexual Orientation: Confronting Heterosexual Family Privilege (1990), 9 Can. Jo. Fam. Law 39, 78
47. Lesbians and gays have been particularly disadvantaged in the area of farnily law. Common myths about lesbian and gay relationships depict them as unloving, uncommitted, untrustworthy with children and unfit to be parents. The extent of the refusal to accord equal recognition to lesbian and gay relationships and the degree of political powerlessness experienced by lesbians and gays in this area can be measured by the number of statutes which deny recognition to lesbian and gay relationships.
Herek, supra Ryder, supra
List of Federal statutes, Appendix A
”Happy Families: The Recognition of Same-Sex Spousal Relationships”, supra
48. The Appellants also note that distinctions based solely on a general characteristic or on the basis of association with a group will “rarely escape the charge of discrirnination.” It is submitted that in the present case lesbians and gays are prohibited from marriage for one reason only, and that is on the basis of their sexual orientation.
Andrews, supra, 174-175
49. The Supreme Court of Canada has also held that a law which reinforces negative stereotypes against a disadvantaged group is discriminatory for that reason alone. In the present case, the denial of access to marriage reinforces the stereotype that lesbians and gays do not form loving, committed, long-term relationships and are not worthy of equal recognition.
R v Swain, supra, 1035
Tétreault-Gadoury v Canada (E.I.C.), [1991] 2 S.C.R. 22, 40-41
Discriminatory purpose and discriminatory effect
50. A legal distinction infringes s.15(1) if it has either a discriminatory purpose or a discriminatory effect.
R v Big M Drug Mart, [1985] 1 S.C.R. 295, 331
R v Turpin, supra, 1334
Andrews, supra, 173
51. It is respectfully subrnitted that a common law prohibition of same-sex marriage has a discriminatory purpose The specific goal of such a rule is to ensure that access to marriage is restricted to heterosexuals and maintain the legal supremacy of heterosexual relationships. In this respect, it is similar to the laws in the United States of America which once prohibited interracial marriages. These statutes were eventually struck down by the United States Supreme Court under the equal protection amendment to the American constitution on the basis that they were “designed to maintain White Supremacy~”
Loving v Virginia, 388 U.S. 1, 18 L. ed. 2d 1010, 1018 (1967)
Leshner, supra, 66
52. A law without a discriminatory purpose will still be discriminatory if it has a discriminatory effect or adverse impact on a protected group. The Divisional Court held that there is no discrimination in the present case because “the law does not prohibit marriage by homosexuals, provided it takes place between persons of the opposite sex. ..the fact that many homosexuals do not choose to marry… is a result of their own preferences, not a requirement of the law.” It is submitted however that a prohibition on same-sex marriage clearly has a much more adverse impact on lesbians and gays than it does upon heterosexuals.
Reasons of Majority in Divisional Court, supra, at 14
Ontario Human Rights Commission v Simpson-Sears, [1985] 2 S.C.R. 536, 550-552
Action Travail des Femmes v Canadian National Railway Co, [1987] 1 S.C.R. 1114, 1138-1139
Affidavit of Lydia Segal, Appeal Book, Tab 27
53. While lesbians and gays are in law able to marry, they are not able to marry a person of the same sex. Emotional and physical attraction to a person of the same sex is an inherent part of a person’s homosexual orientation. A finding that there is no discrimination because lesbians and gays can marry a person of the opposite sex means that in order to obtain the equal benefit of marriage laws, lesbians and gays must completely deny their sexual orientation and marry opposite sex partners. The right to equality that lesbians and gays have under the Charter must be a right to equality as lesbians and gays. There is no equality on the ground of sexual orientation if lesbians and gays can only obtain equal access to marriage on heterosexual terms, i.e. by renouncing their sexual orientation and their own relationships. Tragically, many lesbians and gays once did feel compelled by societal pressures to marry a person of the opposite sex, in order to avoid being stigmatized as homosexual. This inevitably involved that person living a lie, and pretending to be heterosexual in order to avoid the consequences of prejudice, at great personal cost to the lesbian or gay person and his or her family.
Ryder, supra Herek, supra
54. It is respectfully submitted that the Divisional Court’s reasoning that laws prohibiting same-sex marriage do not constitute discrimination on the ground of sexual orientation because lesbians and gays can get married, provided they marry someone of the opposite sex, is equivalent to an argument that laws prohibiting interracial marriages do not constitute discrimination on the ground of race, since under those laws black persons could get married, provided they did not marry a white person.
Loving v Virginia, supra
Baehr v Department of Health, unreported, Supreme Court of Hawaii, No.15689, May 5, 1993
55. It is further submitted that the Divisional Court’s assertion that “the fact that many homosexuals do not choose to marry … is a result of their own preferences, not a requirement of the law” is similar to the argument in Bliss that, in relation to the denial of benefits to pregnant women, “any inequality between the sexes in this area is created not by law but by nature”. This approach was firmly rejected by the Supreme Court of Canada in Brooks.
Reasons of Majority in Divisional Court, supra, at 14
Bliss v A.G. Can., [1979] 1 S.C.R. 183,190
Brooks v Canada Safeway Ltd, [1989] 1 S.C.R. 1219
Systemic Discrimination
56. The Supreme Court of Canada has expressly endorsed the discussion of systemic discrimination set out in the Abella report and affirmed that one of the purposes of equality guarantees is to address systemic discrimination and break down institutional barriers to equality.
Andrews, supra, 174
Ontario Human Rights Commission v Simpson-Sears, supra, 550-552
Action Travail des Femmes v Canadian National Railway Co, supra, 1138-1139
Brooks, supra, 1234
57. Systemic discrimination has been further defined as “discrimination [which is] institutionalised in the policies, procedures, organizations and structures of society.” Systemic discrimination thus describes a history or tradition of discrimination and oppression which has persisted so long that it is deeply-rooted in the laws, customs and attitudes of society. It is particularly invidious in that once discrimination has become deeply entrenched in laws and attitudes it becomes regarded as the norm, the accepted and natural societal order. As a result, it often becomes difficult for those who are not marginalised to accurately perceive the extent of the oppression, or to conceive of any other way in which society could be structured. The tradition of discrimination is therefore used to justify the maintenance of the existing order.
Sheppard, “Recognition of the Disadvantaging of Women: The Promise of Andrews v Law Society of British Columbia” (1989) 35 McGill Law J 207, 213
Leshner, supra, 141
58. In the present case, the majority in the Divisional Court held that “unions of persons of the same sex are not ‘marriages’ because of the definition of marriage.” It is respectfully submitted that it is inherently circular to rely upon the existing definition of marriage to justify the definition of marriage, when the definition of marriage is the very thing under challenge. It may well be that marriage has been defined in such a way as to exclude lesbians and gays in the past, but the very purpose of the Charter is to re-examine traditional (i.e. historical) disadvantage in the light of the constitutional guarantees of equality so that historical structures and institutions which have worked to alienate and disadvantage minority groups may be re-examined to produce a more equal society. The Supreme Court of Canada has recognized the circularity of a discrimination analysis which is conducted entirely within the four corners of the impugned legal definition:
“If the larger context is not examined, the s.15 analysis may become a mechanical and sterile categorization process conducted entirely within the four corners of the impugned legislation. A determination as to whether or not discrimination is taking place, if based exclusively on an analysis of the law under challenge is likely, in my view, to result in the same kind of circularity which characterized the similarly situated test clearly rejected by this Court in Andrews.”
Turpin, supra, 1332
Reasons of Majority in Divisional Court, supra, p.14
59. The very reason an analogous group has s.15 protection in the first place is that it has been historically disadvantaged. If that same historic disadvantage is then used to justify maintaining the status quo or “traditional position”, the equality guarantees in the Charter will be stripped of all substance as historic inequalities are perpetuated:
“The argument that s.15 has not been violated because departures from its principles have been widely condoned in the past and that the consequences of finding a violation would be novel and disturbing is not, in my view, an acceptable approach to the interpretation of Charter provisions.
Turpin, supra at 1328, per Wilson J.
Baehr v Department of Health, supra, 36, 38
60. The evidence demonstrates that marriage is a flexible institution which has existed in a number of different forms in a number of different cultures, and is continually adapting to the demands of a changing society, and to reflect changing values. The Attorney General of Canada’s expert, Professor Hobart, describes a number of changes to the institution of marriage which he describes as “revolutionary”. In particular, the oppression of women at one time formed part of the very basis of marriage. The institution was founded on the concept of women as the property of their husbands. Upon marriage the father transferred to the husband ownership in the woman, who was incapable of owning her own property. This concept of marriage is wholly unacceptable in a society which values equality for women, and the institution of marriage had to change to accommodate current social values, even though this required a fundamental restructuring of the “traditional definition” of marriage.
R v Salituro, supra, 671
Edwards, supra
Affidavit of Professor Hobart, supra, pp 81ff, 95-96
Duclos, “Some Complicating Thoughts on Same-Sex Marriage” (1991), 1 Law & Sexuality 31
Dunlap, “The Lesbian and Gay Marriage Debate: A Microcosm of our Hopes and Troubles in the Nineties” (1991), 1 Law & Sexuality 63, 69-70
Hunter, “Marriage, Law & Gender: Feminist Inquiry” (1991)1 Law & Sexuality 9
Gittins, The Familv in Question (1985)
61. The institution of marriage has undergone fundamental changes to meet the constitutional requirements of equality on the grounds of gender, race, and economic status, and must similarly adapt to meet the constitutional demand of equality on the ground of sexual orientation. Denmark, Sweden and a number of cities in the United States of America have introduced legislation permitting lesbians and gays to register their relationships in order to achieve some degree of equality with heterosexuals, and Courts in Germany and Hawaii have recently begun to recognize the right of lesbians and gays to marry.
Loving v Virginia, supra
Zablocki v Redhail 434 U.S. 374, 5 L. ed. 2d. 618 (1978)
Baehr, supra
AG Frankfurt am Main, 40 UR III E 166/92, 40 UR III Ke 176/92, December 21, 1992
Neilson, “Family Rights and the Registered Partnership in Denmark” (1990), 4 Int’l J. of Law and the Family 297
Pederson, “Denmark: Homosexual Marriages and New Rules regarding Separation and Divorce” (1991-92), 30 3. of Fam. Law 289
Equality for Gays and Lesbians Everywhere/E’galite pour les gais et les lesbiennes, “EGALE Report on Current Issues”, November 1992
62. In the Appellants’ submission a common law prohibition of same-sex marriage fits squarely within the Supreme Court of Canada’s definition of discrimination. The Appellants now address some common misperceptions about the nature of “discrimination”.
Rejection of similarly-situated test
63. The “similarly-situated” test for discrimination has been rejected by the Supreme Court of Canada. The Federal Court of Appeal in Egan took the view that that case had been argued as an application of the similarly-situated test, i.e. that lesbian and gay relationships are “just like” heterosexual ones and are therefore entitled to the same benefits. The Appellants in the present appeal wish to make it clear that they are placing no reliance whatsoever on the similarly-situated test. Although there are in fact a great many similarities between heterosexual and homosexual relationships, the Appellants are not arguing that those similarities therefore require similar treatment, but are basing their case squarely upon the test for discrimination enunciated by the Supreme Court of Canada, i.e. whether the impugned provision imposes burdens upon or withholds benefits from a historically disadvantaged group on the basis of a personal characteristic. Irrespective of the similarities and differences that may exist between homosexuals and heterosexuals and their relationships, the Appellants submit that the legal prohibition on same sex marriage denies the social and material benefits of marriage to lesbians and gays, deprives lesbian and gay couples of the choice of whom to marry and reinforces the negative stereotyping of this historically disadvantaged group.
Egan, supra, 18-21
Andrews, supra, 166-168
Discrimination: Issues of Justification
64. The s.15(1) analysis of “discrimination” does not encompass any considerations of the reasonableness, rationality or justification of the impugned law:
“…any justification, any consideration of the reasonableness of the enactment, indeed, any consideration of the factors which could justify the discrimination and support the constitutionality of the impugned enactment would take place under s.1”
(Andrews, per McIntyre 3, at 182)
“…[the] test of whether a distinction is ‘unreasonable’, ‘invidious’, ‘unfair’ or ‘irrational’ imports limitations into s.15 which are not there. It is inconsistent with the proper approach to s.15 described by McIntyre J. in Andrews. The equality rights must be given their full content divorced from justificatory factors properly considered under s.1. Balancing legislative purposes against the effects of the legislation within the rights sections themselves is fundamentally at odds with this Court’s approach to the interpretation of Charter rights.”
(Turpin, per Wilson 3, at 1328)
65. It is respectfully submitted that the Court should be cautious to ensure that s.1 factors are not permitted to creep in to the s.15 analysis. Arguments that marriage has always excluded homosexuals or is traditionally heterosexually defined or requires the ability to procreate, for example, are in reality s.1 arguments since they do not seek to deny that homosexuals are excluded from marriage but rather attempt to justify that exclusion on the basis of tradition and/or a perceived inability to procreate.
“Irrelevance” a s.1 consideration only
66. Since any considerations which might justify the impugned law can only be advanced under s.1, it is also inappropriate to weigh under s.15 the relevance of the ground of discrimination against the purpose of the law. Both the Federal Court of Appeal in Egan and the Divisional Court in the present case fastened upon a comment of McIntyre 3 in Andrews that a person should not face additional burdens or fewer benefits because of “irrelevant personal differences”, and attempted to elevate this comment into an additional hurdle to be overcome before an applicant can prove discrimination. In Egan the Federal Court rejected the claim of the gay couple on the basis that sexual orientation was not “irrelevant” to the definition of “spouse”, and in the present case, the Divisional Court rejected the Appellants’ application on the basis that sexual orientation was not “irrelevant” to a couple’s entitlement to marry.
Egan, supra, 21-24
Reasoning of the Majority in the Divisional Court, supra, 16
67. It is respectfully submitted that such an analysis takes the comment of McIntyre J. out of context. The learned Judge mentions “irrelevance” only once in his judgment, in the context of a general discussion entitled “The Concept of Equality”, not in his definition of discrimination. McIntyre J.’s definition of discrimination (reproduced at para. 40 above) makes no reference to irrelevance, and has been consistently quoted and applied in subsequent decisions of the Supreme Court of Canada. In conducting its s.15 analysis of the impugned law, the Supreme Court in Andrews did not ask: “Is citizenship relevant to one’s ability to practise law?” Instead it considered the relevance of citizenship as a prerequisite to admission to the Bar only under s.1. Weighing the relevance of the legal distinction against the purpose of the law under s.15 circumvents the proper application of established s.1 tests.
Andrews, supra, 153-158, 165, 174-175, 186-192
Turpin, supra, 1331
Swain, supra, 992, 994
McKinney v University of Guelph, [1990] 3 S.C.R. 229
Tétreault-Gadoury, supra, 39-41
68. Introducing a criterion of “irrelevance” into the definition of discrimination would also resurrect the similarly-situated test in a different form. The Supreme Court of Canada has emphasized that equality requires respecting people’s differences rather than treating everyone identically. Substantive equality requires an examination of differences; a requirement that a characteristic be regarded as “irrelevant” prevents an examination of differences. For example, one’s sex is very relevant to a claim for pregnancy leave; one’s religion is very relevant to whether one may wear a turban; one’s disability is very relevant to a claim of access to a building. Under the “irrelevance” requirement, Native people would have protection against racial discrimination only so long as they are “just like” whites, because as soon as their culture or values differ, race would become a relevant, rather than an irrelevant, consideration.
Andrews, supra, 168-171
Brooks, supra
69. Finally, it is submitted that even if; contrary to the above submissions, irrelevance is taken to be a component of the definition of discrimination, sexual orientation is not a relevant basis on which to restrict capacity to marry. It is as important for homosexuals as it is for heterosexuals to be able to affirm their relationships, to be able to rely upon legal support mechanisms in times of crisis, to be able to legitimate children and to have access to the material benefits of marriage.
C. SECTION 1
70. It is submitted that a prohibition of same sex marriage is discriminatory and cannot be justified under s.1 of the Charter. The onus of justifying an infringement rests upon those seeking to uphold the distinction. The burden of proof is an onerous one and evidence offered in support of the justification must be cogent.
R v Oakes, supra, 137-138
Leshner, supra, 63
71. The need for compelling evidence to support any alleged s.1 justification is particularly important in the present context, where historical discrimination against lesbians and gays and their relationships has given rise to a number of stereotypes. It is submitted that care is needed to ensure that any s.1 justification advanced rests upon solid evidence rather than common stereotypes or misperceptions.
Andrews, supra, 154
72. The Appellants note that there is no evidence whatsoever in the present case to suggest that extending the right to marry to lesbian and gay couples will have any harmful social consequences. The Appellants reserve the right to respond more fully to any s.1 argument raised in the Respondent’s or Intervenor’s factum.
D. REMEDY
73. If the Court accepts the Appellants’ submission that there is no existing prohibition on same-sex marriage in Canada, then the only remedy required is a declaration clarifying the existing state of the law, and a direction that the Applicants be issued with a marriage licence.
74. Alternatively, if the Court finds that there is a common law prohibition of same-sex marriage in Canada and that this rule is inconsistent with the Charter, then s.52(1) of the Constitution Act 1982 requires that the common law rule be of no force and effect. The Supreme Court of Canada in Schachter identified five remedies available under s.52(1) when a law is held to be unconstitutional, namely striking down, severance, either striking down or severance coupled with a temporary suspension of the declaration of invalidity, reading down, and reading in. Where the common law prohibition is overtly discriminatory, it is submitted that the appropriate remedy is to strike down that discriminatory prohibition.
Schachter v Canada (1992), 139 N.R. 1 (S.C.C.)
75. If this Honourable Court is of the opinion that granting the application would necessitate an amendment to other statutory provisions, then it would be appropriate to consider striking down coupled with a temporary suspension of the declaration of invalidity, to give the legislature time to bring other Acts into consistency with the Charter. In Reference re Manitoba Language Rights a suspension of invalidity was granted to enable the Manitoba legislature time to embark upon a wholesale translation of its laws, which were inconsistent with a constitutional requirement of bilingualism.
Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721
76. What is clear is that one of the Schachter remedies must be granted – an unconstitutional law cannot be left in existence.
Schachter, supra, 37-38, 40
PART IV: ORDER SOUGHT
77. The Appellants therefore respectfully request:
a declaration that a common law prohibition of same sex marriage is unconstitutional and of no force and effect;

an order directing that the Appellants Shannon and Schouwerwou be issued with a marriage licence;

a suspension of the declaration of invalidity, if that is considered appropriate on the facts of the case;

costs.

ALL OF WHICH IS RESPECTFULLY SUBMITTED
Philip M. MacAdam
Barrister and Solicitor
1000-67 Daly Avenue
Ottawa, Ont.
KiN 6E3
Counsel for the Appellants
(613) 234-6759
Schedule 1: List of Authorities
Cases
Action Travail des Femmes v Canadian National Railway Co, [1987] 1 S.C.R. 1114
AG Frankfurt am Main, 40 UR III E 166/92, 40 UR III Ke 176/92, December 21, 1992
Andrews v Law Society of British Columbia, [1989] 1 S.C.R. 143
Attorney General for Alberta v Underwood, [1934] S.C.R. 635
Australian Consolidated Press v Uren, [1969] 1 A.C. 590 (P.C.)
Baehr v Department of Health, unreported, Supreme Court of Hawaii, No.15689, May 5, 1993
Bliss v A.G. Can., [1979] 1 S.C.R. 183
Brooks v Canada Safeway Ltd, [1989] 1 S.C.R. 1219, 1234
Brown v Board of Education of Topeka, 347 U.S. 483; 98 L.Ed.2d.873 (1954)
Brown v British Columbia (Minister of Health) (1990), 42 B.C.L.R. (2d) 294 (B.C.S.C.)
C.(L.) v C.(C.) (1992), 10 0.R. (3d) 254
Douglas v the Queen, unreported, Court No. T-160-90, F.C.T.D., October 27,1992
Edwards v Canada (Attorney General), [1930] A.C. 124 (P.C.), reversing [1928] S.C.R. 276
Egan v Canada, unreported, F.C.A., A-1335-91, April 29,1993, at 36
Haig and Birch v Canada (1992), 9 O.R. 495 (Ont. C.A.)
Hyde v Hyde and Woodmansee (1866), L.R. 1 P. & D. 130
Knodel v British Columbia (Medical Services Commission) (1991), 58 B.C.L.R. (2d) 356 (B.C.S.C.)
Leshner v the Crown in Right of Ontario, unreported, Ontario Board of Inquiry, August 31, 1992
Loving v Virginia, 388 U.S. 1, 18 L.Ed. 2d. 1010 (1967)
McKinney v University of Guelph, [1990] 3 S.C.R. 229
Ontario Human Rights Commission v Simpson-Sears, [1985] 2 S.C.R. 536
R v Big M Drug Mart, [1985] 1 S.C.R. 295
R v Keegstra, [1990] 3 S.C.R. 697
R v Morgentaler, [1988] 1 S.C.R. 30
R v Oakes [1986] 1 S.C.R. 103
R v Salituro, [1991] 3 S.C.R. 654
R v Swain, [1991] 1 S.C.R. 933
R v Turpin, [1989] 1 S.C.R. 1296
Re North and Matheson (1974), 52 D.L.R. (3d) 280 (Co. Ct. Winn.)
Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721
Schachter v Canada (1992), 139 N.R. 1 (S.C.C.)
Schachtschneider v the Queen, unreported, F.C.A., A-1190-91, July 6, 1993
Tétreault-Gadoury v Canada (E.I.C.), [1991] 2 S.C.R. 22
Veysey v Commissioner of Correctional Services of Canada (1989), 47 C.R.R. 394 (F.C.A.), affirming 44 C.R.R. 364 (F.C.T.D.)
Zablocki v Redhail, 434 U.S. 374, 5 L.Ed. 2d. 618 (1978)
Articles
Duclos, “Some Complicating Thoughts on Same-Sex Marriage” (1991), 1 Law & Sexuality 31
Dunlap, “The Lesbian and Gay Marriage Debate: A Microcosm of our Hopes and Troubles in the Nineties” (1991), 1 Law & Sexuality 63
Equality for Gays and Lesbians Everywhere/Egalité pour les gais et les lesbiennes, “ÉGALE Report on Current Issues”, November 1992
Gittins, The Family in Question (1985)
“Happy Families: The Recognition of Same-Sex Spousal Relationships”, a brief on the recognition of same-sex spousal relationships written for the Ontario legislature by the Coalition of Lesbian and Gay Rights in Ontario
Herek, “Myths about Sexual Orientation: A Lawyer’s Guide to Social Science Research” (1991), 1 Law & Sexuality 133
Hogg, Constitutional Law of Canada, (3rd ed., 1992)
Hunter, “Marriage, Law and Gender: A Feminist Inquiry” (1991), 1 Law & Sexuality 9
Neilson, “Family Rights and the Registered Partnership in Denmark” (1990), 4 Int’l J. of Law and the Family 297
Pederson, “Denmark: Homosexual Marriages and New Rules regarding Separation and Divorce” (1991-92), 30 J. of Fam Law 289
“Requirements for Marriage Licence”, Office of the Registrar General of Ontario
Report of the Parliamentary Committee on Equality Rights, Equality for All, October 1985
Ryder, “Equal Rights and Sexual Orientation: Confronting Heterosexual Family Privilege” (1990), 9 Can. Jo. Fam. Law 39
Sheppard, “Recognition of the Disadvantaging of Women: The Promise of Andrews v Law Societv of British Columbia” (1989) 35 McGill Law J 207, 213
Stoddard, “Yes: Marriage is a Fundamental Right”, 76 ABA Journal 1990, 42
Schedule 2: Relevant Provisions of Statutes
Constitution Act, 1867 (U.K.), ss.91(26) and 92(12)
Constitution Act, 1982, The Canadian Charter of Rights and Freedoms, ss.1, 15(1), 24(1) and 52(1)
Marriage Act, R.S.O., 1990, c.M.3, ss.8(4) and 11(1)