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ONTARIO MINISTER OF CONSUMER AND COMMERCIAL RELATIONS
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ATTORNEY GENERAL OF CANADA
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METROPOLITAN COMMUNITY CHURCH OF OTTAWA/
EGLISE COMMUNAUTAIRE METROPOLITAINE D’OTTAWA
FACTUM OF THE ATTORNEY GENERAL OF CANADA
Statement of Facts
1. On 16 January 1992, the applicants attended at the office of the City Clerk of the City of Ottawa and submitted a completed marriage licence application form, dated 7 January 1992.
Affidavit of Todd Layland, Application Record, Tab 2, para. 4 and Affidavit of Pierre Beaulne, Application Record, Tab 3, para. 4
2. The application for a marriage licence was not accepted on the ground that marriage requires two persons of the opposite sex.
Affidavit of Todd Layland, Application Record, Tab 2, para. 5 and Affidavit of Pierre Beaulne, Application Record, Tab 3, para. 5
3. On 4 March 1992, the applicants filed a Notice of Application for Judicial Review, requesting review of the refusal to accept the applicants’ marriage licence application form and an Order directing that a marriage licence be issued to the applicants.
4. On 8 April 1992, the applicants filed an amended Notice of Application for Judicial Review and, on 19 August 1992, a further amended Notice of Application for Judicial Review.
5. On 5 May 1992, the applicants served the Attorney General of Canada with a Notice of Constitutional Question alleging a violation of section 15 of the Canadian Charter of Rights and Freedoms.
6. The Attorney General of Canada appears pursuant to the provisions of section 122 of the Courts of Justice Act.
7. The Attorney General of Canada has filed the affidavit of Charles Hobart, professor of Sociology at the University of Alberta, in which he outlines, in two reports, a cross-cultural and historical review of the elements of marriage and the treatment of homosexuals.
Points in Issue
8. The Attorney General of Canada does not agree with the statement of the issues identified by the Applicants. It is submitted that this Application for Judicial Review raises the following issues:
Is the common law concept of marriage, which reflects the concept of marriage as understood not only in Canada but throughout the world, and which by definition involves two individuals of the opposite sex, discriminatory under section 15 of the Canadian Charter of Rights and Freedoms?
If so, does section 15(1) require that the common law be extended to two persons of the same sex, thus fundamentally changing the essential meaning of marriage?
If there is a breach of section 15(1) of the Charter, is the common law definition of marriage nevertheless justifiable under section 1 of the Charter?
If there is a breach of section 15(1) of the Charter which cannot be justified under section 1, what is the appropriate remedy?
9. It is the position of the Attorney General of Canada that:
sexual orientation is not an analogous ground under section 15 in the circumstances of this case;
alternatively, the distinction made by the common law rules of marriage does not amount to discrimination within the meaning of section 15 of the Charter;
if there is discrimination within the meaning of section 15, the common law rules of marriage are nevertheless justifiab1e under section 1 of the Charter.
Statement of Law
10. The legal capacity of all individuals to marry is a matter of federal jurisdiction. The provinces have exclusive jurisdiction over the solemnization of marriage.
Constitution Act, 1867 (U.K.), c. 3, ss. 91 (26) and 92 (12)
11. The federal Marriage Act only sets out modifications to the common law regarding the prohibited degrees of consanguinity within which two individuals lack the legal capacity to marry one another.
Marriage (Prohibited Degrees) Act, S.C. 1990, c. 46
12. In Ontario, the Marriage Act sets out the formal requirements for registration of a marriage.
Marriage Act, R.S.O. 1990, c. M.3
13. The legal recognition that only two individuals of the opposite sex have legal capacity to~ marry one another is not set out in statute, but rather forms part of the federal common law.
Re North and Matheson (1974), 52 D.L.R. (3d) 280 (Man. Co. Ct.)
Hyde v. Hyde and Woodmansee (1866), L.R. 1 P. & D.13
14. This legal definition stems from British Common Law, which has its roots in this regard in the Roman law. This definition is common to all Common Law jurisdictions, including the United States.
Hahlo, H.R. Nullity of Marriage Canada, Butterworths, c. 1979
Stone, Olive M. Family Law, Macmillan Press Ltd., c. 1977, at p. 8
Davies, Christine Family Law in Canada, Carswell Legal Publications, c.1984
Harrogate Borough Council v. Simpson,  2 F.L.R. 91 (C.A.) ½
Wilson v. Quantas Airways Ltd. (1985), 12 I.R. 193 (N.S.W. Equal Opportunity Tribunal)
15. A similar legal requirement exists in the Civil Law, again stemming from the Roman law.
Hahlo, supra, at pp. 4 and 10
see also discussion in Cossey v. United Kingdom (1990), 13 E.H.R.R. 622 (Eur. Ct. of Human Rights)
16. These definitions do not create the concept of marriage, they reflect the societal concept of marriage.
Affidavit of Charles Hobart, Application Record of the Attorney General of Canada, Tab 3
17. Indeed, no jurisdiction in the world has a legal recognition of marriage between two individuals of the same sex.
18. Denmark is the only jurisdiction in the world that has set up a legislative system parallel to marriage for the benefit of same-sex partners. This system allows same-sex partners who meet certain requirements to enter into a “registered partnership”. Under legislation, they are then entitled to some of the same benefits and subject to some of the same limitations as opposite sex couples who are married.
Nielson, Linda, “Family Rights and the Registered Partnership in Denmark”, (1990), 4 Int’l. J. of Law and the Family 297
Pederson, Marianne, “Denmark: Homosexual Marriages and New Rules Regarding Separation and Divorce”, (1991-92), 30 J. of Family Law 289
19. The Supreme Court of Canada has said that any analysis of a Charter breach must be undertaken with a clear appreciation and understanding of the context in which the alleged breach occurs. The courts must review this issue of marriage within the historical and societal context in which it is understood.
R. V. Chiarelli,  1 S.C.R. 711, 732
Tétreault-Gadoury,  2 S.C.R. 22
R. V. Turpin,  1 S.C.R. 1296, 1331-1333
Section 15 of the Charter
20. Section 15 of the Canadian Charter of Rights and Freedoms provides:
“15.(l) 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.”
21. In order for the Applicants to succeed in establishing that their rights under section 15 of the Charter have been infringed, they must satisfy the Court that:
one of their four equality rights has been denied;
the denial was on the basis of an enumerated or analogous ground of discrimination; and
the denial amounts to discrimination in the circumstances.
Andrews V. Law Society of British Columbia,  1 S.C.R. 141, 182
22. The Applicants are alleging a breach of the right to equa1ity before the law and the equal benefit of the law. However, they do not articulate how they are denied ~qua1ity or equal benefit. The equal benefit which they are requesting is an abstract notion of equality which deals with emotional feelings and social validation rather than the operation of the law.
23. The Supreme Court of Canada has indicated that the Charter is not a general guarantee of equality and does not address notions of equality in the abstract.
Andrews, supra, pp 161-164
24. If a breach of one of the four equality guarantees is established, the next question is whether the ground on which the distinction is made is one covered by section 15(1).
25. It is submitted that the case law is unclear as to whether a case such as this is properly analyzed on the basis of whether the ground on which the distinction is based is an analogous ground of discrimination or on the basis of whether the distinction amounts to discrimination in the circumstances.
26. It is submitted that, whichever analysis is used, there is no discrimination in this case.
27. The Supreme Court of Canada has recognized that the list of enumerated grounds in section 15(1) is not a finite list and that the protections of that section will be extended to a group of “analogous”- grounds. The Applicants are alleging that the distinction is based on an analogous ground, here, “sexual orientation” or an aspect thereof.
28. The Supreme Court of Canada has set out a test for the identification of analogous grounds (Andrews, supra). This test is based mainly on the identification of whether the distinction is based on a “personal characteristic” of the Applicants. It is also quite clear that the determination of whether a ground will be analogous or not must be made on a case-by-case basis. Even grounds identified as analogous in some circumstances may not be analogous in other circumstances.
Turpin, supra, 1333
R. V. Généreaux (1992), 88 D.L.R. (4th) 110 (S.C.C.)
29. The court must decide in each case whether the distinction is based on a personal characteristic and, if so, whether the specific “personal characteristic”, in the particular circumstances, is what the Supreme Court of Canada contemplated.
Leroux V. Co-Operators General Insurance Company (1991), 4 O.R. (3d) 609 (C.A.)
Miron V. Trudel (1991), 4 OR. 623 (C.A.)
30. While the Attorney General does not dispute that sexual orientation may be an analogous ground in some circumstances, it is submitted that sexual orientation is not an analogous ground in the context of society’s recognition of the marital relationship, as reflected in the common law, and in provincial and federal laws dealing with that relationship.
31. Section 15 was intended to prohibit the making of laws based on distinctions between individuals or groups that are discriminatory. It is submitted that section 15 does not require the courts to fundamentally change the essential meaning of the societal concept of marriage, as reflected in the common law.
32. Even if sexual orientation is an analogous ground in the circumstances, the Applicants must show that the effect of the distinction in this case is discriminatory.
33. Section 15 does not prohibit the law from making distinctions between individuals or between groups, only distinctions that are discriminatory.
R. v. Hess and R. V. Nguyen,  2 S.C.R. 906
34. The Supreme Court of Canada defined discrimination for the of section 15(1) as:
“I would say that discrimination may be described as a distinction, whether intentional or not, but based on grounds of personal characteristics of the individual or group which has the effect of imposing burdens, obligations and disadvantages on such individual or group not imposed on others, or which withholds or limits access to opportunities, benefits and advantages available to other members of society.” (Andrews, supra., at p. 18).
35. The distinction alleged to be discriminatory in this case is that the common law definition of marriage reflects the concept of marriage.
36. While the Applicants point out in paragraph 30 of their Factum that the similarly situated test for discrimination has been rejected by the Supreme Court, their analysis is flawed because, despite their protestations to the contrary, it is based on a similarly situated test. Their argument is based on the underlying premise that homosexual relationships are in fact identical, i.e. “just like”, heterosexual ones, and that the only way of dealing with the situation is to extend the concept of marriage.
37. On the contrary, the distinction in this case is fundamental to the very nature of the social institution, and is based on a real difference, not on a stereotype.
R. v. Swain,  1 S.C.R. 933
38. Even societies in which homosexuality has been accepted make a clear distinction between heterosexual marriage and the society’s recognition and acceptance of homosexual relationships.
Affidavit of Charles Hobart, Application Record of the Attorney General of Canada, Tab 3
39. In addition, the Applicants’ arguments confuse policy issues with the legal question of whether the Charter requires that the common law definition of marriage be expanded to include two persons of the same sex.
40. The Applicants and their witnesses advance Policy arguments favouring the recognition of same-sex relationships. Some of these policy arguments raise issues which apply equally to arguments relating to the equal treatment of any two individuals living together as much as with homosexual relationships. There are divided views on these issues as they relate to recognition of homosexual “marriage”.
Duclos, Nitya, “Some Complicating Thoughts on Same-sex Marriage”, (1991), 1 Law & Sexuality 31
Sullivan, Andrew, “Here Comes the Groom: A (conservative) Case for Gay Marriage”, The New Republic, August 28, 1989, p. 20
and see appendix A
41. There may be policy reasons for recognizing homosexual relationships in some circumstances. However, the fact that there may be policy reasons for changing a law does not automatically mean that the existing law violates the Charter.
42. Therefore, it is submitted that the societal definition of marriage as reflected in the common law does not violate section 15(1) of the Charter.
Section 1 of the Charter
43. Even if the Court finds that there has been a breach of section 15(1) of the Charter in the circumstances, it is submitted that maintenance of the common law concept of marriage is justifiable under section 1 of the Charter.
44. Section 1 states:
“1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject on1y to such reasonable limits prescribed by law in a free and democratic society.”
45. In R. V. Oakes, the Supreme Court of Canada had the following to say regarding the context of section 1. democratic society”, refer:
“the Court to the very special purpose for which the Charter was originally entrenched in the Constitution: Canadian society is to be free and democratic. The Court must be guided by the values and principles essential to a free and democratic society which I believe to embody, to name a few, respect for the inherent dignity of the human person, commitment to social justice and equality, accommodation of a wide variety of beliefs, respect for cultural and group identity, and faith in social and political institutions which enhance the participation of individuals and groups in society.”  1 S.C.R. 103, 136.
46. The Oakes test is appropriate when considering a common law provision.
Swain, supra, p. 981
47. When a common law rule is involved, in determining the objective, the court looks not to the objective of Parliament, but rather to the overall objective of the common law rule which has been enunciated by the courts.
48. It is submitted that this case does not fit neatly into this type of section 1 analysis.
49. The first difficulty with this case is that the common law rule at issue does not enunciate a purpose or objective within the contemplation of the test discussed in Oakes and Swain. This particular rule acts as part of a larger set of such rules to give legal effect to a social institution.
50. Notwithstanding recent trends affecting the composition of families, marriage remains the most important social institution for the creation of new families and the family unit still forms the basic social unit of society. The fact that the composition of families is changing does not affect the societal importance of maintaining the social concept of heterosexual marriage.
51. From a legal point of view, the legal institution of marriage, or the State’s recognition of a common law relationship, is important because it defines a whole panoply of rights and obligations, either as between the individuals involved or as between the individuals and third parties or the State.
52. Hence the second difficulty with this case. The issue is not simply whether the State is legally required to recognize marriage between two persons of the same sex. The issue is really whether same-sex relationships must be accorded the same rights and obligations in law as heterosexual relationships and whether this must be done through expanding the institution of marriage.
53. Because the purpose of laws defining the parameters of a valid marriage, of which this is one of the most central, is to identify those individuals who are subject to the rights and obligations that attach to the marital status, the case law to date has focused on the position of homosexual couples vis-a-vis these legal rights and obligations.
Leshner V. The Crown in right of Ontario, unreported, Ontario Board of Inquiry, August 31, 1992, but see contra, Carleton University and C.U.P.E. Local 2424 (1988), 35 L.A.C. (3d) 96 (Ontario), affirmed by the Divisional Court, June 4, 1990
Re Vogel and Government of Manitoba et al. (1992), 90 D.L.R. (4th) 84 (Man. Q.B.)
Egan et al. v. The Queen in right of Canada (1991), 87 D.L.R. (4th) 320 (F.C.T.D.)
Knodel v. British Columbia (Medical Services Commission) (1991), 58 B.C.L.R. (2d) 356 (B.C.S.C.)
contra: Re Andrews et al. and Minister of Health for Ontario et al. (1988), 64 O.R. (2d) 258 (H.C.J.)
Canada (Attorney General) V. Mossop (l990), 71D.L.R. (4th) 661 (F.C.A.), on appeal to the S.C.C.
54. The Applicants are really asking the Court to find that the Charter requires that homosexual relationships be submitted to all of the legal rights and obligations which apply to heterosexual relationships.
55. However, all of these legal rights and obligations, whether they have been developed through the common law or whether they result from legislative enactment, pre-suppose that marriage involves a man and a woman. Same-sex re1ationships do not fit the current legal framework.
e.g. Anderson V. Luoma (1986), 50 R.F.L. (2d) 127 (B.C.S.C.)
56. The concept of marriage cannot be changed without a fundamental change to all of the social and legal concepts and institutions which it defines.
57. The Charter requires equality of treatment, not identical treatment.
Andrews, supra, p. 167
Turpin, supra, pp. 1331-1332
58. The Parliament of Canada and the provincial Legislatures have a legitimate and overriding interest in ensuring that, if such a fundamental change is implemented, it is done in such a way as to consider a full assessment of the impact on society and on the law. The legislatures must also avoid creating other inequalities.
59. With the advent of section 15(1) of the Charter, governments have had to reexamine the whole question of when and under what circumstances laws may make distinctions – based on relationships.
60. 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.
See appendix B and “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 for Lesbian and Gay Rights in Ontario
61. In the circumstances, it is both reasonable and justifiable for the legislatures to take steps to examine legislation in light of both the requirements of the Charter, which are still being defined, and policy considerations.
62. While Charter or policy considerations may oblige or favour some acknowledgement of homosexual relationships in some circumstances, there may be other situations where such recognition is neither required or appropriate.
63. Marriage is not necessarily the only way in which such benefits can be provided to same-sex partners. The Denmark system of registering partnerships may be more appropriate, but is only one country’s approach.
“Happy Families, The Recognition of Same-Sex Spousal Relationships”, supra
64. Given the wide-ranging implication of recognition of same-sex partners, the issue should be the subject consideration. The legislatures are in a better position to consider all aspects of the issue and to assess societal and fiscal implications.
Dickason v. The Governors of the University of Alberta et al., unreported, Supreme Court of Canada, September 24, 1992
McKinney v. University of Guelph,  3 S.C.R. 229
65. Even if the Court finds that the common law definition of marriage is a breach of section 15(1) and that it is not justified by section 1, the recent Supreme Court of Canada decision in Schachter states that only in the clearest cases will it be appropriate for the courts to cure an underinclusive provision by expanding its coverage.
Schachter V. Canada (1992), 139 N.R. 1 (S.C.C.)
66. In the case of an underinclusive common law definition, which has immediate legal and fiscal implications for hundreds of other statutes and society, in general, it is submitted that such a remedy is clearly inappropriate.
R. v. Salituro,  3 S.C.R. 654
67. In this case, if the Court is satisfied that the common law violates the Charter, it is submitted that the appropriate remedy would be to suspend the effect of any declaration that the law is discriminatory for a period of time in order to give Parliament, and the provincial legislatures, sufficient time to study and amend, as appropriate, the affected legislation, regulations and policies.
68. If such were to be the Court’s disposition of the case, the Attorney General of Canada would request permission to make additional representations on the issue of remedy and the appropriate period of suspension of the effect of any declaration.
The Attorney General of Canada respectfully requests that this application be dismissed and that the Court declare that the common law definition of marriage does not violate the Canadian Charter of Rights and Freedoms
November 2, 1992
Barbara A. McIsaac, Q.C.
Lisa M. Hitch
John C. Tait, Q.C.
Deputy Attorney General of Canada,
Department of Justice
239 Wellington St.,